DEAKINS' CASE.—2 BLAND. 389

lands, as therein described, in Eandolph, Hampshire, or Hardy
County, in Virginia, to be shewn by Hoye, when called upon, to
the value of $3,050.65, in full satisfaction of Thomas' claim against
the estate of the late William Deakins. In consideration of which
Thomas agreed to assign his judgment to Hoye. And in case
Thomas should neglect to designate the lands, and have them
valued,in the manner specified, before the 1st day of July then
next, Hoye was to have so much of certain lands laid off and con-
veyed, as, at five shillings per acre, would amount to the sum of
$3,050.65. And then Hoye stipulates to have the conveyance made
and the deed ready for Thomas by the last day of July then next.

A few days prior to the 7th day of December, 1805, Elijah But-
ler surveyed 4,576 acres of land, as he says in his letter to the
plaintiff, for Edward Thomas; but there is no proof that Thomas
ever knew of, or assented to this survey, much less, that he ac-
cepted of the land thus laid off. On the contrary, it appears, by
a letter of Edward Thomas, dated on the 16th of December, 1805,
and another of the 22d of April, 1806, which have been produced
as evidence by the plaintiff, that up to that time Hoye had not,
on his part, complied with the agreement. A third letter from
Thomas, dated on the 16th of August, 1806, has been produced
and relied on by the plaintiff, which evidently alludes to some
departure from the original agreement, which Thomas was willing
* to concede on Hoye's granting the indulgence therein asked.
for; but what was done in consequence of the proposition, 406
thus made, does not appear.

Long after which, in the year 1815, Edward Thomas sued out a
scire facias on his judgment against this plaintiff John Hoye, as
administrator de bonis non of the late William Deakins. To which
Hoye appeared and put in five pleas, in one of which he relied on
the agreement of the 36th of March, 1805; and alleged, that the
land therein mentioned became the right and estate of Thomas,
and was received by him in full satisfaction of his judgment. But
afterwards Hoye withdrew his pleas; and on the 24th of April,
1817, confessed judgment, as appears by the record, to bind assets
in hand, and future assets as they accrued.

After which Hoye filed this bill, asking for a specific performance
of the agreement of the 26th of March, 1805; but Thomas having
died before he had answered; Hoye, by a bill of reviver, made his
executors parties. The original bill alleges, that on the 5th of
January, 1816, Hoye executed a deed tor lands according to the
agreement, which deed he tendered to Edward Thomas' attorney,
on the 25th of April, 1817, who refused to accept it. But the
answer of the defendants in no manner admits this deed; and
there is no proof whatever of it; or of its conformity to the agree-
ment.