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THORNTON v. CARSON

February 23, 1813

THORNTON
v.
CARSON



The opinion of the court was delivered by: Washington, J. delivered the opinion of the Court as follows:

Absent. TODD, J.

ERROR to the Circuit Court for the district of Columbia, sitting at Washington.

Two actions of debt, commenced at law by Carson against Thornton, upon two bonds for the payment of money, were referred, by consent under a rule of Court to arbitrators, who awarded that the first action should 'be marked and considered settled; and that the other also should be marked and considered settled, provided, that the Defendant, Thornton, in conjunction with the trustees of the gold-mine company of North Carolina, should convey and secure by a deed and assurance legally executed, with proper and usual covenants, unto John K. Carson, his heirs and assigns, for the benefit of the said John, and the heirs of Thomas Carson, deceased, on or before the first day of January, 1811, one eleventh part of all the minerals and mines that might thereafter be found upon a tract of land, in the county of Montgomery, and state of North Carolina, which by deeds bearing date the 5th of December, 1805, was conveyed by the said John K. Carson, to the said William Thornton, and by the said William Thornton, to the said trustees of the gold-mine company; and that if such conveyance and assurance should not be made on or before the said 1st of January, 1811,' then in the first suit, judgment should be entered up by the Court for the Plaintiff, (Carson,) for the penalty of the bond, to be released on the payment of a certain sum expressed on the award, and also in the second suit, judgment should be entered for the Plaintiff, for the penalty of the bond to be released on the payment of another sum also expressed in the award; and that upon receiving such conveyance and assurance, Carson should convey to Thornton five shares in the gold-mine company, of North Carolina, which Carson had subscribed for on the 1st of April, 1806.

Exceptions were taken to this award, 1st. because it is not final. 2d. because it is uncertain. 3d. because it is unreasonable. 4th. because it is contingent and conditional. 5th. because it is against law, and 6th. because it is no award.

But the Court below over-ruled the exceptions and rendered judgment for the amount of the money mentioned in the award.

The Defendant, Thornton, brought his writ of error, and his counsel insisted upon the following errors.

1. That the award was not final or certain, because its final determination depends on a contingency; and would be an award in favor of the Plaintiff in one event, and in favor of the Defendant in another. It was also uncertain, because there was no way of ascertaining whether the act to be done by the Plaintiff in error, and the other persons, was or was not done; nor whether the conveyances were made as directed; nor whether they were 'proper and sufficient,' nor how, nor by whom the entry was to be made in the suit; and the arbitrators could neither reserve this to be determined by themselves, nor leave it to be done by others.

It was also uncertain, because it is not stated when the entry ('settled') was to be made in the suit in the one event, nor the judgment for the Plaintiff in the other.

2. The award was bad because it required the Plaintiff in error to do what was manifestly out of his power, viz: to get other persons to join him in executing a deed, which, if not impossible, was at least unreasonable.

It was also unreasonable, because it required a deed to be made by the Plaintiff in error, who is stated to have no title nor interest in the thing to be conveyed; and because it only required that the deed should be made; not that it should be delivered; so that the same would not have been binding upon the Defendant in Error; and therefore the award being uncertain, unreasonable and inconclusive as to one party, was to be so considered as to both. And

3. That the award was repugnant and void, being at first in favor of the Plaintiff in error, and determining that the suit should be entered 'settled,' and afterwards awarding that a judgment should be entered for the Defendant in error, upon a certain contingency.

The case was submitted without argument, MORSELL, for the Defendant in error, having cited Kyd on awards, 137, and 12, Mod. 586, Lee v. Atkins.

This is a writ of error to a judgment of the Circuit Court for the district of Columbia.

Under a rule which was served upon the Plaintiff in error to show cause, during the term at which the rule was made, why judgment should not be entered on the award, he appeared and assigned for cause, that the said award was ...


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