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brother, and De la Fontaine and Brymer, by which the appellant and his brother acknowledged, that De la Fontaine and Brymer had transferred to them, or their order, £14,000 East India stock, and which the appellant and the said Anthony agreed to transfer to them, or their order, any time on or before the 11th [367] of October 1769, and pay them the intermediate dividends, as they should become due, on their paying to the appellant and his said brother, or their order, £30,800 with £5 per cent. for one year. And it was further agreed, with De la Fontaine and Brymer, that if at any time before the said 11th of October 1769, the price of East India stock should fall to £240 per cent. they should make a deposit in the hands of the appellant and his brother, of £10 per cent. and continue so to do, for every further fall of £10 per cent. and on failure of such deposit, that the appellant and his said brother might sell and transfer the said stock, and after paying themselves the £30,800 with £5 per cent. interest, account with De la Fontaine and Brymer for the surplus: and the appellant and his said brother further agreed, not to sell or transfer the said £14,000 capital East India stock, or any part thereof, before the 11th of October 1769, without the consent of De la Fontaine and Brymer, unless a fall, as above specified, should happen in the price of the said stock, and the respondent should fail to make the deposit: and De la Fontaine and Brymer, on the said 11th of October 1768, by a memorandum written underneath the said agreement, and signed by them, declared, that the said agreement was made by order and for the account of the respondent. That about the 27th of May 1769, the price of East India stock fell to £240 per cent. and thereupon the appellant John Lewis André made a demand on the respondent for the deposit of £10 per cent. and accordingly he, on the 1st of June following, transferred to the appellant John Lewis André £500 capital East India stock: and on the 17th of July 1769, the price of East India stock falling to £230 per cent. the respondent paid to the appellant John Lewis André, and the said Anthony André, a further deposit of £10 per cent. which was afterwards returned to him. The bill further stated, that the appellant John Lewis André and Anthony André, soon after the 11th of October 1768, sold or disposed of the whole of the said £14,000 East India stock, which they were to have had in trust for the respondent, without his consent or privity, or the consent or privity of the said De la Fontaine and Brymer. And therefore the bill prayed, that the appellants might be decreed to account with the respondent, for the produce of the £14,000 capital India stock so sold, and also the dividends of the £500 stock transferred by the respondent to the appellant John Lewis André, by way of deposit, and to pay the respondent what should be coming to him on the balance of account with interest, after a deduction of what was due for principal and interest, in respect of the £30,800 at the time of the transfer of the said £14,000 stock, and to return the respondent the commission of £1 per cent. on the said £30,800 and to transfer to him so much capital East India stock, as was of the value of the £500 transferred by the respondent to the appellant John Lewis André, on the day such transfer was made, the respondent thereby waiving all penalties that might be incurred by the said transaction.

To this bill the appellants appeared, and put in their several answers; and the appellant John Lewis André, by his answer, stated [368] the agreement with De la Fontaine and Brymer, in the following words, viz.

We acknowledge to have received of Messrs. Anthony and John Lewis André, £30,800 which we promise and engage to pay to them or their order, with £5 per cent. for one year's interest, on or before the 11th day of October 1769, on their transferring to us or our order, after fourteen days notice, £14,000 capital East India stock, and paying to us, or our order, any intermediate dividends that may have become due thereon. It is further agreed, that if at any time, on or before the said 11th day of October 1769, the price of the said £14,000 capital East India stock should fall to £240 per cent. that we shall make a deposit into their hands of £10 per cent. and continue so to do for every further fall of £10 per cent. that may happen. In consideration of which, the said Messrs. Anthony and. John Lewis André agree and engage, not to sell or transfer the said £14,000 capital East India stock, or any part thereof, without the knowledge and consent of the said De la Fontaine and Brymer, unless such fall as above specified should happen in price of the said East India stock, and we fail to make the deposit or deposits above-mentioned. London, the 11th of October 1768. De la