being divided

the instruction was not given. Kilty, C. J., thought no instruction should be given to the jury. CRanch, J., was of opinion that the jury should be instructed that they ought to make the price of flour on the day of demand and refusal, and interest thereon, the rule of damages for the non-delivery.

The jury gave damages according to the price on the 19th of *242November, which was the day the cause of action accrued, the negotiation for a compromise having on that day failed.

Judgment affirmed by Supreme Court, 3 Cranch, 298.