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for the sale of South-Sea stock generally, was not confined to deliver any particular species of that stock; but the respondent having insisted by his bill, that it was annuity-stock which he contracted for, and having declined to accept any other, ought not to avoid that bargain, which he himself declined performing, till he could have such stock. That by the decree, the defendants Miller, Baynes, and Moult were not allowed their costs, nor the appellant his upon his cross bill, though restrained by injunction from his remedy at law; and which he insisted ought not to have been taken from him, there being no colour of fraud or circumvention in the appellant, which might have rendered the case proper for the cognizance of a Court of Equity. That the aforesaid act of Parliament was intended only to avoid fraudulent contracts, which the present one could not be pretended to be on the appellant's part; and, though the great fall of South-Sen stock might be a general calamity to the nation, yet, as it was not just to relieve one subject against law at the expence and ruin of another, so neither could it be for the public utility. As to the objection, that the appellant was not entitled in his own right to £1000 stock on the 5th of October 1720, it was answered, that the act did not require the seller to be entitled to stock at any other time but that of the contract for sale, which was on the 18th of June, and not on the 5th of October, it being impossible for the appellant to sell that stock on the 5th of October, which he had before sold on the 18th of June; and therefore, the agreement of the 5th of October could not be taken to be the contract for sale of the said stock, but as an agreement only to compound for the same, in consideration of having further time granted for payment of the money without interest; and if taken as a contract compounded, it was excepted out of the act, for all contracts relative to South-[199]-Sea stock were not contracts for the sale or purchase of that stock: however, to prevent any dispute, the appellant had proved that he had even then, or within six days afterwards, £290 stock in his own name, and was entitled to the £2310 annuity-stock in the name of Mr. Moult, and to £3500 stock contracted for, besides £700 stock, which he had then mortgaged to the Company for money he had occasion he had to borrow, on account of the respondent's not performing his contract at the time limited and as to the other objection, that if the price of stock had risen, Mr. Moult, being a trustee for infants, could not have been compelled to transfer; it was answered, that Mr. Moult, having by writing under his hand before the contract was made, obliged himself to transfer to the appellant, or his order, in performance of any contract which he should make, was thereby become a trustee for the purchaser, and bound to transfer: that the appellant, from a dependence upon the respondent's making good his agreement, was induced not only to buy stock at a very high price, but to enter into several disadvantageous contracts, on which judgments had been obtained for large sums of money, and against which he could find no relief; whereby, and by the respondent's nonperformance of his agreement, the appellant was plunged into insuperable difficulties, to the ruin of himself and family.

On the other side it was contended (T. Lutwyche, T. Reeve), that the only subsisting contract was that of the 5th of October 1720, which was a new contract for the sale of stock, and not a composition of the prior contract of the 18th of June; and that this second contract was the only contract registered according to the act of Parliament. That at the time of such contract, the appellant was possessed of no more than £290 stock, for be could not be said to be entitled to the trust-stock in his own right, agreeable to the act: and if the price of stock had risen, the respondent could not have compelled Mr. Moult to transfer the same, notwithstanding the note of the 5th of May 1720; that note appearing in itself to be a breach of trust, and not pursuant to the power. That the appellant's cross bill was improper, being to have a specific performance of so hard an agreement, as to be paid £9200 for that which was not worth £1000, and therefore, a court of equity would not give any assistance to such an agreement; but the respondent's bill was proper, it being to be relieved against the penalty, and likewise to have the deposits. That by the decree, the appellant must be paid by the respondent near £3000 for at most £200 stock, with his interest and costs; and the appellant was thereby allowed even the Midsummer dividend of £10 per cent. which, by the agreement of the 5th of October, was to be included, and given to the respondent;