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CARNOCHAN and MITCHEL against CHRISTIE and Another.

March 14, 1826

CARNOCHAN AND MITCHEL AGAINST CHRISTIE AND ANOTHER.


The opinion of the court was delivered by: Mr. Chief Justice Marshall delivered the opinion of the Court.

March 10th.

This cause was argued by Mr. Webster and Mr. Berrien for the appellants,*fn1 a and by Mr. Emmett and Mr. D. B. Ogden for the respondents.*fn2 b

March 14th.

Carnochan & Mitchel, the plaintiffs, were merchants in Georgia, who had extensive commercial transactions with the defendant, William Christie, a merchant of Liverpool, in the course of which the former became indebted to the latter to a large amount. In 1819, John Carnochan, one of the firm of C. & M., visited England, in the expectation of selling immense tracts of land he had purchased in Florida, and, during his residence in that country, his partner, Peter Mitchel, relying, probably, on the sale of lands, continued to draw heavily on the defendant, W. C., without making correspondent remittances. Carnochan being unable to sell his lands, and thus to place funds in the hands of Christie, these bills produced great embarrassments, and frequent communications between the parties, in the course of which Carnochan pressed Christie most earnestly to proceed with his acceptances, and promised to secure him by the pledge of his Florida lands, and property in Georgia. At length, deeds of these lands, and other property, were executed, and the accounts settled between the parties. An account was stated, and signed by them, showing a balance of 43,293 pounds, six shillings and four pence sterline, due to Christie, for which sum Carnochan gave the promissory note of C. & M., dated _____.

Soon after the execution of these deeds, Carnochan returned to Georgia, and considerable payments were made. But, the debt still remaining considerable, the agent of Christie caused the deeds to be recorded, and apprehensions were entertained that he would proceed to sell the property. In June, 1820, Carnochan & Mitchel filed their bill in the Circuit Court of the United States for the District of Georgia, alleging that the account was unfairly settled, to the very great injury of the plaintiffs; that it contains many erroneous charges, and omits to give credits to which the plaintiffs are entitled, and that Carnochan was induced to sign it, and to give the note for the amount, in consequence of his situation, which placed him in the power of the defendant. That the deeds also were executed under duress, and consequent imposition. The bill prays that the account may be resettled, that the deeds may be cancelled, and the defendant enjoined from proceeding under them. The injunction was awarded.

The defendant, Christie, filed his answer, denying all the material allegations of the bill.

Numerous exhibits were filed, and several depositions taken. In December, 1821, the parties agreed to refer the case to arbiters, and the following submission was entered on the record:Carnochan and Mitchel

v.

William Christie and William Jenner,

In equity.

'We agree to the reference. The arbitrators to determine all matters in controversy as exhibited in the pleadings, with the understanding that the stated account is not to be opened further than to permit the complainants to establish by proof the errors in the same, as alleged in their bill and exceptions; the items which compose the alleged error of four thousand pounds, to be distinctly stated and specified by the complainants within twenty days from this date. The defendant, William Christie, (if he desire it,) to have one hundred and twenty days to produce documents or vouchers to answer the said items, upon giving the complainants notice within ten days after receiving such specification. The parties to proceed in the arbitration upon ten days notice after the expiration of the time allowed the complainants to exhibit their specification above mentioned. This submission to be made an order of Court. The arbitrators to make their award within one hundred and twenty days, unless prevented by the requirement of time by the said William Christie as aforesaid, from this date, and return the same to the next term of this Court; which award, when so made, shall be final and conclusive between the parties, subject to those exceptions which arise upon awards, or decisions of arbitrators. Claims to commissions mutually abandoned, and the amount decreed by the arbitrators to be paid in two instalments, at six and twelve months from the date of the decree, and sufficient security for the fulfilment of the award be given by Carnochan & Mitchel to William Christie. The arbitrators to have the power of examining witnesses upon oath, and calling for documents which they may deem necessary; but the said William Christie shall be excused from producing any such document, if he will depose that the same is not in his possession on this side of the Atlantic. The arbitrator under this submission, chosen and selected by the complainants, is William Gaston, Esq., and the arbitrator chosen and selected by the defendant, William Christie, is Samuel Nicholas, Esq.; the said arbitrators, in case of disagreement, to name an umpire. The arbitrators to decide whether William Christie is entitled to a distinct and separate interest in the Florida lands, as he alleges, or to an undivided interest in the proceeds of the same, as alleged by Carnochan & Mitchel. If they decide in favour of complainants upon this point, then the whole property shall be placed in the hands of trustees mutually appointed by the parties, with authority to sell the same, or such part thereof as may be necessary, and appropriate the proceeds to William Christie on his own account, and to the credit of the balance which shall be found due to him, until the same is extinguished, in the proportion of the respective interests of William Christie and Carnochan & Mitchel. If they decide in favour of the defendant upon this point, then it is agreed, that an immediate partition of the property shall be made, and the part allotted to Carnochan & Mitchel shall be placed in the hands of such trustees, and the same, or such parts as may be necessary, to be sold, and the proceeds appropriated in like manner to the payment of the balance found due to William Christie by Carnochan & Mitchel, until the same is paid. That, as soon as that balance is paid, the deeds and other encumbrances held by said William Christie, with the settled account and note of Carnochan & Mitchel, are to be delivered up.

'That it shall be referred to the said arbitrators to determine whether the payment of the balance should be made in England at par, or here.'

'On the 14th of February, 1822, the following award was returned, and filed in Court.

'IN THE SIXTH CIRCUIT COURT OF THE UNITED STATES, DISTRICT OF GEORGIA.

C. and M.

v.

C. and J.

In equity.

'ARBITRATION. The undersigned arbitrators, chosen and selected by the above named parties, as will more fully appear by reference to the submission calling them to perform this duty, under date of the twenty-eighth of December, eighteen hundred and twenty-one, beg leave to report and award to the following result, after the most patient hearing of the parties aforesaid, and a careful examination of the books, papers, letters, and vouchers, which have been submitted to their inspection, and, also, after giving all matters and things in controversy the most mature deliberation.

'1st. That William Christie place to the credit side of his account with the late firm of Carnochan and Mitchel, the sum of eighteen thousand eight hundred and forty-six dollars and fifty-five cents, as an amount paid by said Carnochan & Mitchel, through Mitchel, Nephew & Co. of Havana, to Messrs. John & James Inerarity, for sixteen shares, or eighty thousand acres of land, bought by Carnochan & Mitchel, by order, and for account of, William Christie, of said John & James Inerarity, lying in the territory of West Florida; that the said Carnochan & Mitchel be also credited with an accumulating interest on said amount from the dates of payment, which precise periods will more fully appear by reference to an affidavit made by Colin Mitchel at Havana, on the nineteenth day of October, eighteen hundred and twenty-one; said interest to be calculated at the after the rate of five per centum per annum; provided, nevertheless, that the said John Carnochan and Peter ...


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