belchier holy reynold agreement between vendor and purchaser of a  copyholdestate in which they covenant for themselves and their representative  to fulfil the contract atid to re fer the question of value one of the party  die their representative can annul the decision of the referee by show a error  in his estimate or compel the acceptance of the penalty under which the  agreement be secure in satisfaction of their breach of contract in the year  the plaintiff and lady Wilmot enter into a agreement for the purchase of a  copyholdestate of lady Wilmot purport that they mutual agree to submit it to  one Harris the steward of the manor where the estate lie to fix the price  between they in consideration of which lady Wilmot covenant for herself and  her heir to surrender the estate to the plaintiff and the plaintiff covenant  for himself his executor c to pay her the money and in the same agreement  Kenyon both party bind themselves to each other in a penalty of pound for the  performance of their respective covenant about twelve month after this and  before Harris have make any adjudication of the price lady Wilmot die on who  death her daughter and coheir the defendant be admit tenant and pay the lord a  fine and fee c which accrue to he by lady Wilmot death which amount in the  whole to soon after Harris make his adjudication wherein after recite that he  have with the assistance of surveyor farmer workman c calculate the real value  of the estate he adjudge the same at of this adjudication he deliver duplicate  to each of the parties  upon which the plaintiff apply to the defendant give  they notice that he expect a specific performance of the agreement and send  his attorney with the money to attend the manorcourt and receive a surrender  but the defendant refuse he file this bill pray a performance against the  defendant the coheir and their husband and likewise against Harris Harris by  his answer state agree able to the recital of his adjudication that he have  proper assistance in make it and that it be a just one accord to the best of  his judgement the other defendant insist it be otherwise offer to pay the  penalty for that the estate be of double the value accord they prove in the  cause by the oath of person skill in those affair that they have survey the  estate in July last and think it worth to be sell pound the plaintiff examine  no witness to the value and now on the hear the objection insist on for the  defendant be that this agreement be only in the nature of a authority and not  be execute in the lifetime of lady Wilmot be at a end and can not be proceed  in without the fresh consent of the party but if the court think otherwise the  difference between Kenyon the real value as it be prove in the cause and the  money which Harris have adjudge the plaintiff to pay be so very great that  that alone be sufficient to induce the court to think he under the influence  of the plaintiff or else so gross ignorant of the nature of thing of this sort  as to be a very incompetent judge of the value and that in either case the  court ought to set aside his adjudication or at least to leave the plaintiff  to his remedy at law and not compel a specific performance in so very bare a  case that a penalty of pound be fix by the party themselves as a compensation  in case either think proper to decline go on with the agreement the defendant  be ready to pay the plaintiff that sum and hope the court will think it very  sufficient satisfaction for the nonperformance of the article that as the  value of the estate be put in issue by the answer the plaintiff have give no  evidence on that head and the defendant prove it to be worth pound that must  be look on as its real value that by mean of Harris not make his adjudication  soon the defendant have be put to so great a expense as pound to get  themselves admit tenant that at the tithe of make the adjudication they have  no notice of Harris intention of make it of course no opportunity of make the  value of the estate appear to he and upon the whole they hope that on payment  of the pound penalty if not otherwise the agreement shall be vacate to this Mr  solicitor general and Mr Wilbraham for the plaintiff reply that the agreement  be not a authority to be determine by the death of the party but a agreement  which the party have mutual covenant for themselves and their representative  to perform that no particular time be limit for Harris make his adjudication  and therefore be may as Kenyon well execute it at one time as another Kenyon  er p and if either party will have have he do it soon they shall have apply to  quicken he that the plaintiff do right in examine no witness to the value for  that be not now material and will have be give up the point which he insist on  I e that Harris be the person to who that point be StLbmitted by both party  with a view no doubt to prevent any litigation that may arise from different  estimate as a person in who integrity and capacit both party think they may  confide they be conclude by his adjudication that the difference of the  estimate take by the defendant witness and that take by Harris only prove  their judgement to be different from his and for aught appear his may be the  just one or that as the one be take four or five year ago and the other but in  July last that may occasion a real difference in point of value that Harris  character be unimpeached and therefore his adjudication ought to be adhere to  that it appear as well from the adjudication as from his answer that he have  proper assistance in form his judgement that this may be the occasion of his  omit it so long that it be well know law that the insertion of a penalty in  article of this sort will not prevent a party from come into this court for a  specific performance of the agreement if he think that more eligible than a  action for the penalty for which be cite the case of Hobson v Trevor p wms  that the death of lady W before the adjudication be the act of God which  nobody can foresee or prevent and that the expense which it occasion to the  defendant be a necessary consequence of that event and no way imputable to the  plaintiff and will have be the same have the adjudication be make unless the  estate have be surrender that the plaintiff be no more consult by Harris or  privy to his adjudication Kenyon than the defendant nor indeed be it intend by  the party that either of they shall be so since the litigation and dispute  about the value be the very inconvenience which it be the design of this  agreement to prevent master of the roll sir John strange Thils be a agreement  to be execute by the party or their representative and not a authority to be  determine by their death the distance in time between the estimate take by the  defendant witness and that by the defendant Harris may by reason of the  increase of the value of land in some measure account for their different  opinion as to the value of this estate it do not appeal to the court who  opinion be the right one and Mr Harris appear not to have take his without  proper assistance and proper consideration for that purpose perhaps be do  right in defer his adjudication so long he be not direct by the agreement nor  do it appear that either party desire he to do it soon but whatever be the  real value be not now to be consider for the party make Harris their judge in  that point they think proper to confide in his judgement and must abide by it  unless they can have make it plain appear that he have be guilty of some gross  fraud or partiality on this occasion which indeed they have not attempt to  impute it be like the case of a submission to arbitrator who award will never  be set aside but on the plain proof of fraud or partiality the defendant  object that they be not privy to nor have any notice of the adjudication have  Mr Harris proceed ex part and consult with or hear the plaintiff on that bead  there may have be some weight in this objection but it do not appear he  consult either party nor be it necessary he shall the difference Kenyon of the  valuation of this estate can never be a reason for the court to set aside the  adjudication for that be the very point submit to Mr Harris judgement and be  the court to set aside award where no improper partiality r collusion appear  mere on the merit of the case award will answer no end for those very dispute  they be design to prevent it be very well know that a party may come here for  a specific performance of a agreement notwithstanding the insertion of a  penalty in it and the case that have be mention show it the death of lady  Wilmot be the act of God and the expense it occasion to the defendant be  unavoidable therefore let the contract be specifical perform but as it be a  hard case on the defendant let the party abide by their own cost other than  Harris which be to be pay by the plaintiff Kenyon er p