DEAKINS' CASE. 403

executors of Edward Thomas, deceased, until the final hearing of
this case, or further order.

After which a commission was issued, by virtue of which
testimony was taken in this case under the name of Hoye against
King and Hebb; and the whole matter was again brought before
the court.

14th December, 1827.—BLAND, Chancellor.—This case stand-
ing ready for hearing, the solicitors of the parties were heard, and
the proceeding read and considered.

The late Edward Thomas, in the year 1804, obtained a judgment
against Francis Deakins, executor of the late William Deakins, for
the sum of $3,390 50, with interest from the 1st of November,
1797, and costs. After which, Francis Deakins died, and admi-
nistration de bonis non upon the estate of the late William, was
granted to the plaintiff Hoye. On the 26th of March, 1805, soon
after Hoye had thus obtained letters of administration, he entered
into an agreement with Edward Thomas to let him have certain
lands, as therein described, in Randolph, 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 conveyed,
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
52 v.2