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Fontaine and Brymer. Signed, sealed, and delivered, being first duly stamped, in the presence of Martin White.

And the appellant by his answer further said, that the said Anthony André had, at and before the date of the said agreement, at his command, to the time of his death, and that the said appellant John Lewis André always had, until and after the 11th of October 1769, £14,000 East India stock and upwards, ready to transfer, and would have transferred the same, according to the said agreement, had it been demanded, but that the same was not demanded. He denied, that he or the said Anthony André did sell or dispose of the whole or any part of the said £14,000 East India stock, which was by the agreement to be a security for re-payment of the £30,800 and interest, until after the expiration of the time mentioned in the agreement, and in default of the respondent's redeeming the same, and paying the £30,800 and interest.

The cause being at issue, and witnesses examined on both sides, came on to be heard before the Lords Commissioners for the custody of the Great Seal, on the 18th of December 1770, when their Lordships were pleased to order, that the respondent's bill should stand dismissed, as against the defendants De la Fontaine and Brymer, with costs; and that it should be referred to the Master, to see for what sum the late Anthony André, and the appellant John Lewis André, sold the £3000 East India stock, which was transferred to them or their order by the respondent, on the 11th of October 1768, and sold by them the same day: and it was further ordered, that the Master should also inquire for what sum the appellant John Lewis André sold the £500 East India stock, which was transferred to him by the respondent, on the 1st of June 1769; and the Master was to compute interest on what he should find to have been produced by sale of the said £3000 and £500 East India stock, from the respective times of the sales thereof, [369] after the rate of £5 per cent. per annum and it was further ordered, that the appellants should pay to the respondent, what should be found due for principal and interest, in respect of the money produced by the said sales: and it was likewise ordered, that the appellant should pay the respondent his costs, and also the costs to be paid by the respondent to the defendants De la Fontaine and Brymer, under the directions before given.

The appellants conceiving themselves aggrieved by this decree, appealed from it; insisting (E. Thurlow, C. Ambler), that the contract was entered into by De la Fontaine and Brymer the brokers, without the intervention of the respondent, and under a general unlimited authority from him for that purpose. That the true meaning of the agreement was, not that a specific sum of £14,000 should be locked up, but that the appellant John Lewis André, and his brother Anthony, should be answerable for and always have so much stock at command, during the continuance of the contract, ready to be transferred on fourteen days notice, and they accordingly always had that sum at command, and ready to be so transferred. That De la Fontaine and Brymer, authorised as aforesaid, gave their express consent, that no specific identified £14,000 East India stock should be retained by and in the names of the Andrés, according to the literal terms of the agreement, by their being concerned for them in settling all the transactions relative to the transfers and delivery of the several parcels of stock belonging to them, on the 11th of October 1768. That as the bill was brought for a supposed breach of contract, the respondent's remedy was properly at law, by an action for damages. That the relief prayed by the bill was, that the respondent might have the benefit of the sale of the £14,000 and £500 East India stock, paying what was due from him for the £30,800 and interest; and to this relief the case made by the bill was adapted: whereas the decree had only directed an account of the sale of the £3000 and £500 stock, which was not warranted either by the respondent's case, or proofs, and was more advantageous to him than the relief prayed by his bill. And therefore it was hoped, the decree would be reversed.

On the other side it was contended (A. Wedderburn, J. Dunning, C. Sayer), that the Andrés were bound by the agreement to have had £14,000 India stock standing in their names, from the 11th of October 1768, to the 11th of October 1769, in trust for the respondent; and were not at liberty to transfer or dispose of any part of it, unless the respondent had failed in making deposits on the fall of the price of the stock, which he never did. That the money which the Andrés engaged to lend the respondent, ceased to be employed for him the moment that the pledged