
    Haggart and Dunn v. E. D. and G. D. Morgan. 
    
    A stipulation in a sealed contract for the erection of a building, providing that all disputes which shall arise respecting the work or the finish of the building, should be settled by arbitration, cannot oiist the jurisdiction of the courts as to such disputes.
    In a suit upon a bond given to obtain the discharge of property seized upon the warrant of’ attachment against a debtor as non-resident, the defendants cannot show that the debtor was a resident of the state at the time the attachment. was issued.
    Where a debtor goes to a foreign state and remains absent three years, he is a non-resident within the meaning of the act relative to absent and absconding debtors, although he has all the time intended to return to this country. Per Curiam.
    
    (Before Duek and Mason, J. J.)
    Sept. ;
    Oct. 19, 1850.
    
      This was a suit brought in the supreme court, on a. bond executed by Jacob Brandegee as principal and the above defendants as sureties, the suit being continued against the latter as survivors of Brandegee. The bond, dated November 18th, 1847, -recited that -the. -plaintiffs, on the 15th November, 1847, procured, an attachment to -be issued against-the-real and personal estate- of Brandegee as a non-resident' debtor, under which the sheriff had attached all B.’s estate, and its condition was that the obligors should pay to the attaching creditors -the amount -justly due and owing to them by B. at the issuing of the attachment. The declaration set forth that B. was then indebted.to the plaintiffs $800, -with"interest from November 1st,. 1844, on a sealed contract, for work, -labor, and materials. - The defendants pleaded non est. factum, and attached a notice, that they would prove various matters of defence.
    The cause was tried in October,-.1848, before -Mr. -Justice Strong, of the supreme court. The plaintiffs proved a sealed agreement between them and Brandegee, dated' August 12th, 1844, for erecting a rear building to the house No.-3 Le Roy Place, for- which he was to pay .them $200Q,. in instalments, the last $800 when the' work was completed. The agreement .con-, tained the following clause: “ And it is further agreed, that in case any dispute should arise .respecting the work or finish of the building, the same shall be settled forthwith by arbitrators in the usual way.”
    The plaintiffs proved that they built the rear-addition, and it appeared the defendant claimed a deduction from the contract price, .for defective work and materials, &c.' ■ • ■
    The defendant moved for a nonsuit, on -the - ground that the plaintiffs, by the contract, were bound to arbitrate, and Brandegee had not refused,. but had endeavored-to-carry out the stipulation. The motion was overruled. The defendants then offered to prove, that at the time of taking out the attachment, and at .the time of giving the bond in this suit, Brandegee was. not a non-resident, b,ut a resident of the oity of.-New York,-that his house was at No.: 3 Le Roy Place; and that he'was at housekeeping there at the time, and had been for many years, that his absence was temporary at New Orleans, and that he was there detained by necessary attendance to a law-suit, and that he had been so detained during his whole absence of about three years, that he left here in November, 1844, and returned in the spring of 1848. The court overruled this offer, and refused to permit the evidence, on the ground; — 1st. That the offer itself showed the defendant Brandegee to be a non-resident at the time the attachment issued, within the spirit of the act. 2d. That the giving the bond to discharge the attachment prevented him from showing such fact. To which ruling the defendant’s counsel excepted. .
    It appeared that the parties had joined in an attempt to arbitrate in November, 1844, but the arbitration proved abortive; and proof was given by each party to show that it was the fault of the other.
    .The judge charged the jury that if the plaintiffs had made no attempt to arbitrate, or if the arbitration fell through by reason of their fault, they could not recover. ■ If they had made a fair attempt to arbitrate, and it fell through by Brandegee’s fault, they were entitled to recover what was' actually due to them on the contract. The defendant excepted to the charge. The jury found a verdict for the plaintiffs, and the defendants moved in this court for a new trial on the case.
    
      J. H. Patten, for the defendants.
    
      N. B. Blunt, for the plaintiffs.
    
      
      
         This judgment was affirmed in the court of appeals.
    
   By the Court.

Mason, J.

We think that the motion for a nonsuit in this case was properly denied. It is well-settled law that an agreement, like the one contained in the article between the plaintiffs and Brandegee, to refer all disputes that might arise in the progress of the work to arbitration, cannot oust the jurisdiction of the courts, and that it is no defence to a suit. (Chitty on Contracts, 792, and cases there cited.) But the objection comes with a very ill grace from the defendants, since the plaintiffs did all in their power to comply with the agreement to refer, and the settlement of the dispute in that way was defeated only by a refusal on tbe part of Brandegee to extend for a few days the time of making the award.

The evidence offered to show that Brandegee was a resident, was also properly excluded. The bond in suit was conditioned to pay the sum justly due on account of the debt sworn to by the plaintiffs in their application for the attachment; and the only question under the pleadings, after proof of the due execution of the bond, was, whether any, and if any, what amount was due. In the case of Franklin and others v. Pendleton, we lately held that a party who had given a bond to relieve a vessel from an attachment, was estopped from contesting, in a suit on the bond, the regularity of the proceedings on which the attachment was issued. The provisions of the statute under the act authorizing the attachment of vessels, and the act respecting attachments against absconding, concealed, and non-resident debtors, are similar in the matter of giving bonds to discharge the attachment, and the same principles govern in each. Besides, if Brandegee had wished to contest the fact of his non-residence, the statute pointed out a mode of doing so. Sections 44 to 49, both inclusive, contain minute provisions as to the course to be pursued in such cases. But instead of contesting the fact of non-residence in the manner prescribed in the statute, the defendants executed a bond which virtually admitted that the attachment was properly issued. To allow him to dispute that fact in a suit on the bond itself would, we think, be a violation of the letter and spirit of the act.

It was well observed by the judge on the trial, that th.e facts which the defendants offered to prove showed that Brandegee was a non-resident debtor within the meaning of the statute. He had left the state without paying this demand, or making provision for payment, and he had remained abroad for upwards of three years. During all this time the plaintiffs had been deprived of their just dues; and it would be strange indeed if they could not, after such a prolonged absence, make their debtor’s property to respond for this debt, because he had all this time the purpose of returning- to the state when it might , suit his convenience.

The charge of the judge was, we think,- erroneous. He. ruled, in effect, that the agreement to refer was a bar. to the. action, •unless the arbitration had fallen through by the fault of-Bran■degee; and if the jury, upon this ruling,' had found for the defendants, we should have been obliged, on exceptions properly taken by the plaintiffs, t.o have set .the verdict aside. But, clearly, the defendants cannot avail themselves of the error of the judge, which was in their favor.

Motion for a new trial denied. 
      
      
         Reported, ante, yol. iii. p. 5'72.
     