delivered the opinion of the Court :
We are of opinion that the judgment in this case should be affirmed. We do not perceive any error in the instructions given by the Circuit Court.
The rule was correctly laid down, that the measure of damages, for the non-conveyance of the land, was the value of the land at the time it was to be conveyed.
The instructions that were refused to be given, in reference to the defendant’s pointing out and directing the rock and gravel to be put into the darn, and that the same was immaterial, were correctly withheld.
The instructions that were given, on the evidence adduced, under the issues formed upon the third count of the declaration, were proper, and no objection is perceived as to their accuracy.
The judgment is affirmed with costs.