
    *White v. Atkinson.
    October Term, 1795.
    [1 Am. Dec. 470.]
    Specific Performance — Contract during Existence of Paper Money. — An agreement was made to sell land, during the existence oí paper money, part of the money to he paid in June 1780, when a conveyance was to be made, and the residue in twelve months thereafter. Th e money was not paid, or tendered at the day, nor was a conveyance made. Upon a "bin by the vendee for a speciflc performance, he was, under the circumstances of the case, decreed a conveyance, upon his paying the value of the land at the time of the contract, instead of the value of the purchase money agreed upon, according to the scale of depreciation.
    This was an appeal from a decree of the High Court of Chancery in a suit instituted there, by White against Atkinson, for the conveyance of a tract of land, sold by Coleman, the agent of Atkinson, to the appellant.
    In November 1779, Coleman, the agent of the appellee, contracted with the appellant to sell him a certain tract of land belonging to the appellee, according to certain metes and bounds, for the price of £6 per acre, the quantity to be afterwards ascertained by a survey. Two thirds of the purchase money was to be paid in the months of May, or June following, when a title was to be made, and a bond was to be given by the appellant for the balance of the purchase money, payable in twelve months thereafter, and to carry Ínteres'- from the date. The survey was accordingly made in March 1780, and the quantity ascertained, at which time a memorandum in writing was signed by Coleman and delivered to the appellant, expressive of the contract before mentioned, except as to the time of payment of the two thirds of the purchase money which is stated in the memorandum to be when the deed should be acknowledged by the appel-lee.
    The bill charges, that a tender of the money was made to Atkinson in specie, according to the scale of depreciation, but there is no proof of it, nor that even a demand of a deed was made and an offer to pay, until long after paper money had ceased to circulate.
    The defendant Coleman admits in his answer, that a deed was neither made, nor tendered ■ by Atkinson, but that he agreed late in the year 1781, that White should have a conveyance, if he would then pay the monej'. No deed was ever executed, nor was any part of the purchase money paid, except .£18 paid by White to M’Craw, a creditor of Atkinson’s, and for which he had credit with the said M’Craw. It also appears, that long after the contract was made, White was willing to make payment, if he could have obtained a conveyance, but the parties differing about the value of the money, nothing was done.
    Upon a hearing of this cause, the High Court of Chancery decreed, that the defendant should convey the land in question to the plaintiff, upon his tendering, or paying to the defendant so much money, as with ;£18, was equal to the value of the land, on the last day of June 1780, to be established by a jury on an issue to be tried for that purpose.
    *The verdict upon this issue being certified,, it was decreed that the plaintiff should over and above the sum found by the jury, pay to the defendant the interest thereof, to be computed from the last day of June 1780, and the costs expended by Atkinson, as well on the trial of the issue, as in the said Court of Chancery, upon Atkinson’s executing a sufficient conveyance of the land in question to White and to his heirs, and delivering the same, or (if refused by him) depositing it - with the clerk of the court.
    From this decree White appealed.
    Campbell for the appellant.
    I admit that he who applies to a Court of Chancery for equity is bound to do equity. But the question is, what is that equity which the contract in question required the appellant to do? The court cannot possess an arbitrary power of deciding what the party shall do who applies for equity, but must be governed by general rules and principles which bind that court. What then was the contract sought to be specifically executed? That Atkinson should convey the tract of land to White, and should receive payment at the rate of £(> per acre, two thirds at the time the conveyance should be made, and the residue in twelve months thereafter, for which a bond was given. This is proved by the written paper delivered by Coleman to White.
    The argument of hardship drawn from a depreciation of the paper money, is repelled, by considering that it was in the power of Atkinson at any time to coerce the payment of two thirds of the money by tendering a conveyance.
    But Task, could the depreciation of the money furnish a sufficient reason for the decree given in this cause? Suppose the money had appreciated, and Atkinson, who had it in his power to enforce payment of the money, had sued at law for the purchase money, or had applied to a court of equity for a specific performance; could either court have protected him from the payment of the money at its encreased value? surely not. Ought not the same principle then to exist where the purchaser seeks a specific performance? The tobacco contracts made during the war have uniformly been enforced, and they were not less oppressive upon the debtors. The court is called upon to carry a contract into effect; instead of which, a new one is made for the parties, and the purchaser is decreed to pay according' to the value of the land, instead of the value of the money at the time of the contract.
    It appears that White had the money ready to pay for the land, though he did not legally tender it, nor demand a convey7ance. But I contend it was not necessary for him to do either. *It was the duty of Atkinson first to acknowledge the deed, or to inform White that he was ready to do so. But he did neither, and to permit him now to demand the money at the value stated in the decree, is to suffer him to avail himself of his own wrong. Besides; if the legislature of a country shall declare iron, leather, or any other thing to be money, and shall give to it a certain value, I cannot understand how any court can establish a different standard of value.
    Marshall for the appellee.
    This is a case where precedents cannot be expected. Men differed as much in their opinions respecting the value of paper money, as upon any subject whatever. The legislative declaration respecting depreciation, could not regulate the various opinions of men as to the value which they annexed to the money at the time they were forming their contracts.
    Suppose in this case, the appellant had brought his suit at law for damages; the jury would not have been bound by the arbitrary value put upon the money by the legislature, but would have given such damages as they thought the party in justice entitled to. But if he prefer an application to this court for a peculiar relief, which no other tribunal could afford him, he must submit to the rule of this court, which requires him to do equity, in return for the equity he seeks. Upon this principle it is, that a mortgagor coming here to redeem his estate which is forfeited at law, must do equity by paying other debts due to the mortgagee, tho’ not secured by the mortgage. The court lay him under these terms, not because the parties have agreed to it, but because it is equity. Might not all the arguments used by Mr. Campbell in this case, apply with equal weight to the one just mentioned?
    I do not agree that the contract is as stated by Mr. Campbell. The bill describes the agreement agreeably to the memorandum given to White by Coleman. This is denied in .the answer, and Coleman states, that the money was to be paid in the June following and then the conveyance was to be made. The appellant then has been the cause that the agreement has not been executed, and yet seeks to gain an advantage by his own wrong.
    Campbell in reply.
    In cases where the specific execution of an agreement is asked for, the court may refuse to interfere if the contract be inconsistent with the principles of equal justice & good conscience, but if it do interfere, the terms of the contract must be pursued. But this decree cannot upon any principle be right. The most which the court could have required of the appellant, was to convey according to the value of the paper money at the time it ought to have been paid, and not *the value of the land; this would be to take from the appellant a good bargain which he may have made, and which, having made fairly, he was entitled to enjoy. The case of an application by the mortgagor to redeem, is not apposite. There, the court goes upon an implied agreement of the mortgagor, that the subsequent loan should be secured by the mortgaged property ; for as to debts contracted prior to the mortgage, the principle does not apply.
    
      
       Specific Performance — Vendec — Depreciated Cur • rency. — The principal case Is cited in Lohnian v. Crouch, 19 Gratt. 352, as authority for the proposition that when a contract for the purchase of land is made in a currency which is already greatly depreciated, and which is constantly undergoing still further depreciation, speciflc execution will not he decreed in favor of a vendee who is in default, upon his merely paying the purchase money and interest according to the contract.
      See monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Graft. 213.
      Equity Court — Condition of Relief — Imposing Terms. —In Booten v. Scheffer, 31 Graft. 493. the court said: “The rule sought to be enforced here, is the very reverse of that established in White v. Atkinson, 2 Wash. 91. In that case the sale was made In 1779, during the existence of paper currency. The purchaser was in default in the payment of the purchase money. The court, as a condition of relief, decreed that he shohld pay the fair value of the land at the time of the sale, instead of the value of the currency agreed on.” The principal case is cited in this connection in Carter v. Ragland, 21 Gratt. 577 ; Taliaferro v. Minor, 1 Call 532 ; Lohman v. Crouch, 19 Gratt. 345, 353 ; Hughes v. Caldwell, 11 Leigh 352.
      In Lohman v. Crouch, 19 Gratt. 342, the court, in reference to the principal case, said : “The reasoning of all the judges in that case shews that if it had been a specie contract, performance of it would have been decreed upon the payment of the purchase money, as agreed, with interest; but in view of the fact that it was made on the fluctuating basis of a depreciating currency, it was held that the purchaser under such circumstances should be required by the court of equity, whose aid he was seeking, to do equity, which was deemed to be, in that case, to pay the value of the land at the time of the contract, instead of the value of the money agreed upon. There the purchaser did not punctually pay, nor offer to pay, the purchase money according to his undertaking. Here, however, the facts are quite different.”
      Paper Money Contracts — Scale of Depreciation. — The principal case is cited with approval in Dearing v. Rucker, 18 Gratt. 468 ; Bierne v. Brown, 10 W. Va. 761 ; Gilkeson v. Smith, 15 W. Va. 60.
      See report of the principal case in 2 Call 376.
    
   ROANE}, J.

This is a bill praying for the specific execution of an agreement, whereby, the agent of the appellee contracted to sell to the appellant a tract of land, for the consideration in the bill mentioned. The appellant alleges this contract to have been made on the 18th of March 1780, but as the memorandum then given, and on which he seems to rely, is consistent with the declaration of Coleman the agent, in his answer, that the contract was really made in the November, or December preceeding; and as Barkesdale a witness in the cause, states his belief, that this land was sold prior to the year 1780, I shall consider this contract as really made in one of the said months of November or December; and as Coleman the agent of the appellee admits, it might have been in the month of December, (which admission is to be taken most strongly against the party who makes it) I shall fix upon the month of December 1779, as the time of the contract. This contract was a general one, by which the agent of the appellee, agreed to sell the land in question to the appellant for £6 current money per acre; whereof two thirds was to be paid in the months of May or June following, when a deed was also to be executed, and for the balance the appellant was to have a longer credit. The appellant did not punctually pay the money according to his undertaking, and although he afterwards shewed a willingness to do so, it was refused by the appel-lee, because of its depreciation. The appellee also refused to give a conveyance of the land, unless the appellant would make such a settlement and payment, as would be satisfactory to his agent, Coleman. Thus matters rested untill after the abolition of paper money, when White exhibited his bill.

This case is not as I conceive distinguishable from the common one of a bill for the execution of an agreement, after a failure of payment on the part of the purchaser, except so far as a distinction may arise from the situation of this country at the time of the transaction, in respect to its circulating medium. *1 will therefore consider this case 1st, as independent of that circumstance : and 2dly, as affected by it.

It will not, I presume, be denied, but that in the case of a general agreement, made in times when the currency is permanent, and unattended with an3’ peculiar circumstances, a court of equity would decree a conveyance upon payment of the principal money contracted for, and legal interest. It would make such principal money the measure of that which the purchaser is to pay, on one of two grounds; 1st, as being a fulfillment of the very agreement made on the part of the vendee, and consented to by the vendor. Or 2dly, if it should be proper on the ground of there having been a forfeiture, to consider what is a just compensation, it could fix upon no criterion whereby to estimate this compensation so proper as the contract of the parties themselves.

There is no doubt, but that if the real value of the property sold is to be regarded, it ought to be ascertained as at the time of the contract; and the opinion of both parties as to such value at that time, ought to be conclusive upon both.

That is however the case of a contract in currency of a fixed value, and for the nonpayment at the time it became due, the law has settled the equivalent, namely, S per centum per annum. But the case now under consideration is that of a contract made in a depreciated and depreciating currency. We will therefore consider how it is affected by that circumstance. I very readily admit, that where a party against whom a bill is brought for the specific execution of an agreement, shews that such would be unconscionable, and prays that it may not be decreed but upon such terms as are just, a court of equity may impose such terms upon the plaintiff,’ and if he will not submit to them, may dismiss his bill. But to decide what are, and what are not such equitable terms as the court ought to impose, will depend upon the circumstances of every case, and upon the exercise of a sound discretion by the court. 1 say of a sound discretion, because it ought not to be an arbitrary one, and in particular, it should respect the laws of the country, and so far as may be, the agreement of the parties themselves. The act of 1781, — establishing a scale of depreciation, and declaring that out standing current money contracts should be regulated by such scale as at the date of such contracts, — appears to me, in effect, to have converted such current money contracts into specie contracts; for it declares that such shall now be discharged by as much specie, as shall appear, by the application of the scale, to have been *then (viz. at the date of such contracts) the value of the current money. In the case of specie contracts generally (as is above supposed,) upo" payment of the sum contracted for, and interest, a specific execution would be decreed. But the case is not different in substance where the contract was for paper money: to value of that paper money, and not the numerical sum, is what the vendee is bound to pay, and the vendor entitled to receive. If the scale forms a just rule for ascertaining the value of paper money in specie, by the application of it to the current money contract of the parties, we can find the value in specie of that which was contracted to be paid, not less truly, than if the contract had been for specie itself. And the seller can no more complain of receiving such a sum with interest, as being less than he contracted to receive, than he could complain of receiving principal and interest in case of a specie contract. The legislature have established this scale as a just rule, whereby to settle paper money contracts in specie. It was no doubt made after the deliveration, and upon good information. It has been generally acquiesced in by the people of this Commonwealth, and has prevented much litigation. It affords, I suppose the best rule for ascertaining the value of the paper money, having been made by those, who represented every part of the state, and had the best opportunity of judging. The opinion of the Court of Appeals in the case of Hill v. Southerland’s executors (ante vol. 1, p. 128) does not preclude me from considering this scale as affording a just rule or estimating the value of paper money, as it respects the years posterior to 1778. Perhaps, that case impliedly admits the scale to afford a just rule, except as to the years 1777, & 1778. At any rate, I have no data whereby I am justified in saying that as to the contract in question, the scale does not afford a just rule. But the appellee alleges, that he had immediate use for the money, and that he sustained an injury by the want of punctuality in the payment. If he had shewn to the court the amount and particulars of the injury, and moreover, that he had apprized the appellant that his situation was so peculiar as to render punctually in the payment important to him, I will not say, but a court of equity would lay hold of those circumstances to vary the decision, which I think ought now to be given. But it seems to me, that without such data, we ought not to go into the consideration, how far the seller may have sustained a loss by the non-payment of the money when due. Neither ought the purchase to be affected by a loss resulting to the seller on account of any peculiarity in his situation, when such situation was not made known to him.

*In fact, the pretension which I am now considering, would as well apply to a specie, as to a paper money contract ; with this additional circumstance attending the latter, that the money if paid, might have been refused by the appellee’s creditor, and in that event, or if he were not himself a debtor, it might and probably would have died in his hands by the abolition of that currency. I might here add, that such was the peculiar situation of this country during the existence of paper money, that many, if not most creditors were ruined by a punctual performance of contracts made on credit; whereas it was by the virtuous and honourable conduct of some debtors in withholding payments, that many creditors were sheltered from destruction.

The 5th section of the act of 1781, establishing a scale of depreciation, gives to the court a power to depart from such scale, where circumstances shall arise, which in their opinion would render a determination according to it unjust. Such a power I have already admitted is exerciseable by a court of equity, upon an application like the present, independent of this section, where the circumstances will justify it. What those circumstances are, which are contemplated in this section, I will not undertake to say; but it would seem to me that they must be such as are peculiar to that very case, and not such as are common to every case. The one now under consideration appears to exhibit no circumstances which may not reasonably be supposed to attend •every paper money contract, which was not punctually complied with. But it is said, that the court ought in this case to depart from the scale, because otherwise, the ap-pellee will not get the value ot his land. The counsel for the appellee candidly acknowledged that he did not place his hopes of setting aside the contract in the present case, upon the equality of the sum produced by the scale, compared with the real value of the land. Indeed a contrary doctrine would involve the court in a difficulty, where to draw the line, if every (even the minutest) inequality, should not be deemed sufficient to justify a departure from the scale; but before we can say that a given sum is unequal to the value of the subject, that value itself must be ascertained.

In the present case, the value of the land at the time of the contract, is not ascertained, otherwise than by the original contract of the parties. There are two witnesses who say they think the land was worth fifty pounds of tobacco per acre; but what was the value of the tobacco in specie at that time, or whether these witnesses are credible, this court cannot undertake to say. *A jury has also said the land was worth six shilling per acre. But the time to which their valuation has reference, was six months posterior to the time of the contract, within which period, the land might for any thing known to the court, have considerably risen in value.

Upon the whole, as by the application of the scale of depreciation, (which in this instance in presumed to afford a just, as well as a legal rule of liquidation,) to the current money contract of the parties, we can precisely ascertain the value in specie which was contracted to be given for the land, at the time the purchase was made, such application ought to have formed the criterion by which the Chancellor should have estimated the compensation to be paid by the appellant, and by this rule, the appellee will receive more iu value than he would, If the money had been punctually paid, in consequence of its progressive and rapid depreciation.

I am of opinion therefore, that the decree should be reversed, and modelled as to the compensation, according to the ideas above stated.

FLEMING-, J.

It is a rule at law, that the breach of one covenant, cannot be pleaded in bar to another. The appellant might have brought his action at law, and if he had, he must have proved performance on his part. Instead of resorting to a court of law, he has applied to a Court of Chancery for an equitable relief, and therefore, he must submit to the rules of the court which require him to do equity. This, is certainly very different from common cases. The agreement was made at a time when money was much depreciated, and was every day still farther depreciating. This condition of the circulating currency was known to both parties, and therefore punctuality was more necessary than it would have been, if the value of the money had been stationary. Since therefore, the appellant made the first breach in the contract, which operated to the injury of the other party, he is not entitled to the relief he asks for, but upon the terms of his doing equity: and this consists in his paying the real value of the land at the time of the contract. This was properly preferred by the Chancellor to a dismission of the bill, since the appellant had paid part of the money, and very probably had made some improvements. I am for affirming the decree.

CARRINGTON J.

When this cause was first brought on, I was struck with the impropriety of interfering with the contracts of parties. But upon fuller consideration of the circumstances *of this case, I think that justice cannot otherwise be done. The real value of paper money was very little known to any person. There were few, who were not deceived by it. A want of punctuality never failed to produce a loss, and the longer payment was delayed, the more the loss was accumulated. The parties iu this case certainly had depreciation in view, and Atkinson, may have calculated upon the use of the money, if punctually paid at the time agreed upon. Beyond that time no calculation could have been made. As to the payment of the money, it ought to have preceded the conveyance, and it is evident that White himself thought so from his conduct. Yet it does not appear that he tendered the money, or had it to pay. It is clear that White forfeited all his rights under the contract, at law, and then the question is, in what situation does he stand in a Court of Equity. The Chancellor instead of dismissing the plaintiff’s bill, more properly decreed a conveyance upon the equitable terms of his making compensation ; the standard of which compensation he very rightly considered to be the value of the land, as ascertained by a jury. I am of opinion that the period to which the valuation should have related ought to have been that, when the contract was made, and not that, when the first payment was to be made. The difference in this case is not important, but if either party requests an issue to try the value at the date of the agreement, I have no objection to indulging him. As to the danger of a precedent like this, I think that all such cases must depend upon their particular circumstances, and that the opinion now given will not apply in a case precisely like the present.

LYONS, J.

The general rule in executory contracts respecting personal things is, that if the purchaser does not pay and take away the property in convenient time, the seller is not bound, and may dispose of it again. If earnest be given, the vendor must request payment of the consideration, after which he is absolved from the bargain if it be not paid. In cases of sales of real property, the rule of equity is; that though a forfeiture take place at law by a failure on either side, yet if it be a case lying in compensation, a Court of Chancery will relieve against it. But if that court do interfere, it must be in cases perfectly fair, equal and just. Another rule in a court of equity is, that he who would receive the benefit must sustain the loss. Here then occurs the difficulty of the case. The legislature have established a scale, by -which to ascertain the sum in *specie which should be paid in discharge of contracts entered into at particular periods, whilst paper money was in circulation. This law was very properly passed, for otherwise the value in each particular case must have been ascertained by a jury, in the same manner as in actions for foreign money. This would have produced infinite trouble and litigation, which this law, (affording I believe the best general rule) is wisely calculated to prevent. It is of more consequence that the law should be fixed and known, than that it should always be strictly just. The debtor is to pay according to the scale at the date of the contract, because, as the payment was not punctually made, by which the debtor had the benefit of the money, and deprived the creditor of the use of it, the debtor ought to bear the loss by depreciation. This rule would have been enforced, if the creditor had brought his suit to coerce payment. This furnished an equitable course of reasoning with the Chancellor to depart from the scale, when he was applied to for equity. On the other hand if the creditor refuse the money when tendered, or if there be other circumstances to warrant a departure from the scale, it may be made; in no other case, can a smaller sum be allowed; in none more.

The scale is binding where the creditor sues. But where the debtor applies for equity, the rules which govern courts of equity maj' properly be applied to him. The case of Wilson and M’Rae v. Keeling, (ante vol. 1, p. 194,) went upon the principle, that he who would have sustained the loss shall have the benefit. So here, if the money had been paid, a specie debt might have been discharged with it, or it might have been applied to other valuable uses. I agree, that the time when the contract was made, was the proper period for fixing the valuation of the land, and that in this respect the Chancellor was wrong.

The PRESIDENT. — To view this case as a general one, unaffected by the particular circumstances which attend it, the appellant has wholly failed in performing his part of the agreement. It does not appear that he was ready to do so during the whole year. Tf White had brought his action at law he could not have succeeded, without averring and proving performance on his part, or that he was ready to perform. The agreement therefore was entirely forfeited at law, and how does he stand in a Court of Equity? He has paid part of the purchase money, and has perhaps made improvements upon the land. This being a case where compensation can be made, a Court of Chancery will relieve, but upon what terms? If the contract *had been made in specie, the value fixed by the parties would have furnished the just measure of retribution. But even in cases of specie contracts, I will not say that this measure would in all cases be resorted to. Suppose a man sells at half price upon condition of punctual payment, calculating upon an ability which he might thence derive of making a beneficial investiture of the money. Suppose it should appear that he had lost this advantage by want of punctuality. The court I think would properly depart from this rule, and might refuse to relieve but upon payment of the full value of the land. However this might be, it is certain, that in a case of a contract made in paper money where the scale furnishes no just rule for fixing the value of the money, the rule above mentioned ought to be departed from. No juror can say what were the ideas of the parties as to the value of the money at the time of the agreement.

The act of 1781, furnishes a good general rule for scaling paper money contracts; perhaps the best which could have been made. But it is certainly not just in all cases. What is the objection to the méasure of compensation adopted by the Chancellor? Because the appellant had got an advantageous bargain, it is supposed hard to deprive him of it. But why is he deprived of it? Why did he not perform those acts which entitled him to retain the advantage? This court does not deprive him of it; he has been himself the cause of its being lost.

I agree with the other judges, that the period to be fixed for ascertaining the value of the land was that, at which the contract was entered into. The difference in specie is not considerable, but if either party wishes an inquiry (at his own expence) according to this opinion he may be gratified.

The opinion and decree as entered, is as follows, viz:

“That there is no error in the principle of the said decree, so far as it subjects the appellant, to the payment of the specie value of the land, as a condition upon which the land is to be conveyed to him; and although the value at the time of the contract should have been enquired of, instead of the value at the day of payment, yet as the difference is probably trivial, and not equal to the expence and trouble which would be incurred by a new trial of the issue for that purpose, the verdict of the jury ought to stand as the valuation, unless either party shall choose at his own expence to have such new en-quiry made in which case a new issue ought to be made up, and tried by a jury, to ascertain what was the specie value of the land at the time of the contract; and that there is error in the decree *in this, that the appellant is decreed at all events to pay the money and take a conveyance of the land, instead of allowing him the option of abandoning his claim, and losing the money he has paid. Therefore it is decreed and ordered that the said decree be reversed.and annulled, and that the appellant pav to the appellee Roger Atkinson, as the party substantially prevailing in this court, his costs by him about his defence in this behalf expended. And this court proceeding to make such decree as the said High Court of Chancery should have pronounced, is of opinion, that the appellant having failed to perform on his part the agreement sought to be carried into execution, had forfeited all claim to the aid of this court for that purpose, but having paid' part of the purchase money, and probably made improvements on the land, he ought to be relieved against that forfeiture upon making the appellee Roger Atkinson just compensation, the rule of which ought to be the value of the land at the time of the contract; and altho’ that value usually is, and ought to be in such cases considered as fixed by the contract when specie of stable value is the medium of payment; yet in this case, where that medium was to be in paper depreciated and rapidly depreciating at the time, the contract affords no just rule for ascertaining the specie value of the land, which was therefore properly enquired of and settled by the verdict of a jury, and ought to stand as the rule of compensation; therefore, it is further decreed and ordered, that upon the appellant’s paying or tendering to the appellee Roger Atkinson, within three months from the time of his being served with a copy of the final decree in the High Court of Chancery the sum of one hundred and twenty eight pounds, two shillings, with interest thereon at the rate of five per cent, per annum from the last day of June 1780, till payment, and the costs of this suit, the said appellee shall execute a good and sufficient deed or deeds for conveying to the appellant the land in the proceedings mentioned in fee simple with a general warranty, but if the appellant shall fail to make such payment or tender, within the time aforesaid, that his bill in that case shall stand dismissed with costs. But if either party shall upon this decree being certified to the High Court of Chancery apply to that court and desire a new enquiry to be made by a jury at his expence, what was the specie value of the land on the last day of December 1779, an issue shall be made up, and directed to be tried by a jury to ascertain such value at that period ; *which being tried and certified to the satisfaction of the said High Court of Chancery, shall stand as the rule of compensation instead of the former valuation, and with the interest thereon from the said last day of December 1779, after deducting the eighteen pounds paid, be paid or tendered to the appellee Roger Atkinson, within such reasonable time as shall then be allowed by the said court to entitle him to the conveyance in the above decree mentioned, or subject him to the consequence therein stated in case of this default.”  