1818.

McIver

V.

Kyger.

and choosing the lands in Kentucky, and to be allowed to take lands to the amount of $2,200 on the waters of Elkhorn, or from other lands patented for the said Josiah, in Kentucky, at the intrinsic value which such land bore at any time between the 25th day of March, 1789, and the 25th day of September, 1790. On this representation it was agreed that the time for choosing, valuing, and conveying the lands in Kentucky, should be extended eighteen months; that Kyger might take lands to the stipulated amount, from other tracts, which were specified, at the intrinsic value between the periods before mentioned, taking not less than 700 acres out of any one tract. To ascertain the value of these lands, Thomas Marshall, the elder, was chosen on the part of Watson, and Samuel Buler on behalf of Kyger; and it was agreed that if T. Marshall should die or refuse to act, the agent of Watson in Kentucky should nominate some other person in his stead. A similar provision was made for supplying the place of Buler. The selection and valuation being thus made, Josiah Watson was to convey the land selected and valued.

In the year 1806, Daniel Kyger and others, devisces of George Kyger, party to the said contracts, filed their bill in chancery in the circuit court for the county of Alexandria, stating the contracts abovementioned; and stating, farther, that the lot in Alexandria had been duly conveyed; that Thomas Marshal had refused to act as a valuer; that the agent of Watson had nominated John M'Whattan in his place; that in the year 1791, the said M'Whattan and Buler proceeded to make a valuation, by which the lands on

Elkhorn were valued at 1,200 dollars, and by which one tract of 1,800 acres on Ravin creek, and one other tract of 1,200 acres on Forklick creek, were taken to complete the amount in value to which Kyger was entitled under the contract.

The bill proceeds to state, that this valuation was made known to Josiah Watson, and the conveyances demanded, but from some unknown cause were not made until Josiah Watson became bankrupt. That in the year George Kyger departed this life, having first made his last will in writing, in which he devised all his real estate in Kentucky, to the plaintiffs. In the year 1805 the plaintiffs presented to Josiah Watson an affidavit made by M'Whattan and Buler, stating the valuation they had made, and demanded a conveyance. He excused himself on account of his bankruptcy, but executed a release which recites the agreement and valuation; and that a deed for the lands had been executed by him, which was in the hands of John M'Iver, the defendant. This release is annexed to the bill. The bill prays that M'Iver, the defendant, who is the assignee of the bankrupt, may be decreed to convey the lands contained in the valuation of M'Whattan and Buler.

The answer admits the contracts, but does not admit that Thomas Marshall declined acting as a valuer, or that M'Whattan was appointed in his place. It avers that the Elkhorn lands where worth the sum at which they were rated in the first contract, and that the second was obtained by the fraudulent representations of Kyger. That the valuation of M'Whattan and Buler was not only unauthorized, but

1818.

McIver

V.

Kyger.

1818.

M.Iver

V.

Kyger.

made under an imposition practised on them by Kuyger, who prevailed on them to consider the contract as obliging them to value the lands on Elkhorn and Eagle creek at no more than one dollar per acre, although they might be worth more. That Josiah Watson never admitted that Kyger was entitled to more than the Elkhorn and Eagle-creek land, which was, therefore, not conveyed to his assignees, though the other lands mentioned in the bill were so conveyed. The defendant consents that a conveyance be decreed for the Elkhorn and Eagle-creek lands, and insists that the bill as to the residue ought to be dismissed.

Several depositions were taken, which generally estimate the Elkhorn and Eagle-creek land at a dollar or more per acre. One deposition estimates them at 83 cents. Parts of those lands were sold by Kyger at various prices, whether on credit, or on what credit, is not stated, averaging rather more than one dollar per acre.

The deposition of M'Whattan was taken by the defendant, and states that the valuers acted under the first agreement; and, to the best of his recollection, thought themselves bound to estimate the first rate land at not more than one dollar per acre.

The court decreed a conveyance for all the lands contained in the valuation, from which decree the defendant appealed to this court.

The appellant contends:

1st. That the second contract ought to be annulled, having been obtained by fraud. If this be against him, then,

2d. The valuation ought to be set aside, and a revaluation directed.

1. Admitting the lands on Elkhorn and Eagle creek to have been worth, intrinsically, one dollar per acre, a fact not entirely certain, the court is of opinion that the second contract is not impeachable on that ground. It is not suggested, nor is it to be presumed, that Watson derived his sole knowledge of the value of his lands from the representations made by Kyger. The value fixed in the first contract was probably founded on his previous information, and there is no reason to doubt that when Kyger was dissatisfied with the stipulated price, Watson was perfectly willing to leave the value to arbitrators mutually chosen by the parties. The court perceives no reason for annulling the second contract.

2. On the second point, the establishment of the valuation made by M'Whattan and Buler, there is a total want of testimony. The defendant, in his answer, denies the authority of M'Whattan to act as a valuer, and there is no proof to support the allegation of the bill. The ex parte affidavit of M'Whattan and Buler, did it even contain any evidence of their authority, is inadmissable; and the recitals of the deed of release executed by Watson after he became a bankrupt are not evidence. The decree, therefore, so far as it establishes this valuation, and orders conveyances to be made in conformity with it, must be reversed, and that valuation set aside and a new one directed.

Decree accordingly.

1818.

M⭑Iver

V.

Kyger.

VOL. III.

1818.

The Diana.

Feb. 10th.

(PRACTICE.)

THE DIANA.

Decree in an instance cause affirmed with damages, at the rate of six per centum per annum, on the amount of the appraised value of the cargo, (the same having been delivered to the claimant on bail,) including interest from the date of the decree of condemnation in the district court.

APPEAL from the circuit court of South Carolina. This was an information under the non-importation laws, against the ship Diana and cargo. Condemnation was pronounced in the district and circuit courts, and the cause was brought by appeal to this court. At the last term, on the hearing, it was ordered to farther proof; and the farther proof not being satisfactory, the decree of the court below was affirmed at the present term.

Mr. Berrien, for the United States, inquired whether the damages should be computed from the date of the bond given for the appraised value of the cargo, or from the decree of the district court.

The court was of opinion, that the damages should be computed at the rate of six per centum on the amount of the appraised value of the cargo, including interest from the date of the decree of condemnation in the district court.

Decree affirmed.