
    Haggart et al. v. Morgan et al.
    
    
      Prospective submission. — Adionon bond. — Pleading.—Attachment against non-resident. — Exception to charge.
    
    A prospective submission of any disputes that may occur, contained in a contract under seal, is no bar to an action on it; so, if the arbitration fail, through the fault of the arbitrators, in not making their award within the time limited.
    If parties mutually hind themselves for the performance of covenants, under a penalty, an action will lie, either for' the penalty, or for damages for breach of covenant.
    The plea of non est factum only puts in issue the execution of the instrument declared on ; it admits the breach.
    Actual non-residence without the state is sufficient to sustain an attachment against an absent debtor, irrespective of the question of domicil.
    The fact of the defendant’s residence cannot be litigated in an action on a bond given to release the property attached.
    A general exception to the charge, containing distinct propositions, will not avail, unless each of them be erroneous and to the party’s prejudice.
    Haggart v. Morgan, 4 Sandf. 198, affirmed.
    *-A-p:p:bal from the general term of the Superior Court of the city of New York, where a motion for a new trial, made upon a bill of exceptions, had been denied, and judgment perfected upon a verdict in favor of the plaintiffs. (Reported below, 4 Sandf. 198.)
    This was an action of debt, brought in the supreme court, by Haggart and Dumas, against Jacob Brandegee, and E. D. and G. D. Morgan, his sureties, upon a bond, dated the 18th November 1847, given to release certain property which had been seized by the sheriff, under an attachment at the suit of the plaintiffs, against Brande-gee, as a non-resident debtor. Brandegee died after verdict, and the suit proceeded against the surviving defendants.
    
      The declaration set forth, that Brandegee was indebted to the plaintiffs in the sum of $800, and interest from 2d November 1844, upon a contract under seal; and that they were residents of the city of New York. It then set forth the proceedings to obtain the attachment, the issuing thereof, the seizure of Brandegee’s estate, and the execution of the bond to obtain a discharge of the property. It set out the bond and condition, and averred, as a breach; *that the plaintiffs were attaching-creditor’s of Brandegee, and that there was due to them on account of the debt claimed in the attachment suit, the sum of $800> and interest, which had not been paid. The defendants pleaded non est fadum, and gave notice of special- matter.
    On the trial, before StkoNG, J., the plaintiffs gave in evidence an agreement under seal, between them and Brandegee, dated the 12th August 1844, for the erection of a rear building to the premises No. 3, Le Boy Place, for which he was to pay them $2000, in instalments. The parties thereby bound themselves for the faithful performance of their covenants, in the penal sum of $1000. And the agreement provided, that in case any dispute should arise respecting the work or finish of the building, the same should be settled forthwith, by arbitrators, in the usual way.
    The defendant, Brandegee, having claimed a deduction for defective work and materials, arbitrators were appointed, and mutual bonds given to abide their award. The submission provided, that if the arbitrators should fail to agree, they should name an umpire, whose award should be ready for delivery on or before the 20th November 1844. *The arbitrators not having agreed, an umpire was appointed, but his award was not made within the time limited in the submission.
    At the close of the plaintiffs’ testimony, the defendants moved for a nonsuit, on the ground that' the plaintiffs, by their contract, were bound to arbitrate, and that Brandegee had not refused, but had endeavored to carryout the stipulation; and also, that the action ought to have been on the penal clause in the arbitration bond. The motion for a nonsuit -was overruled, and the defendants excepted.
    The defendants then offered to prove, “that at the time of taking out the attachment, and at the time of giving the bond in suit, the defendant, Brandegee, was not a non-resident, but a resident of the city of New York, that his house was at No. 3, Le Roy Place, and that he was at house-keeping 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 lawsuit, 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, however, overruled the offer, and the defendants excepted.
    leame(l judge charged the jury, “that the plaintiffs were entitled to recover, if at all, under the circumstances, in the form of action which they had adopted. That if the jury believed the plaintiffs had made no attempt to arbitrate, or if the arbitration had fallen through by their fault, then they were not entitled to recover. That in regard to the damages, it had been shown, that on the arbitration, certain deductions had been made by the arbitrators, and testimony had been given to show that such deductions were not properly made; that this testimony was admissible, if the failure to arbitrate effectually was caused by the defendant, Brandegee, but it was not conclusive; that it was worthy of consideration by the jury, as coming from men who had examined the work, and estimated the proper deductions; that if the jury found for the plaintiffs, they must give them what was actually due, and no more.” The defendants took a general exception to the charge.
    
      The jury found a verdict in favor of the plaintiffs for the penalty of the bond, and assessed the damages at $917.43. The suit was then transferred to the superior court, where a motion for a new trial, made on a hill of exceptions, was denied, and judgment was entered upon the verdict; whereupon, the defendants took this appeal.
    
      * Patten, for the appellants
    
      Mathews, for the respondents.
   Gardiner, J.

The motion for a nonsuit was properly overruled. 1. Because the agreement to arbitrate only entitled the party to damages, but was no bar to an action. (Mitchell v. Harris, 2 Ves. Jr. 129, Sumner’s ed. and note; 8 T. R. 139; 2 Story’s Eq. §§ 1457-8.) 2. Because the arbitration clause in the building agreement between the plaintiffs and Brandegee, is limited to “ any dispute which should arise respecting the work or finish of the building.” The plaintiffs have brought their action, among other things, for the last instalment due on the completion of the work; this subject is not within the letter, nor the spirit, of the covenant to arbitrate. 3. Because, if it should be granted that the plaintiff had agreed to arbitrate on this subject, they have done so, as the defendants insist, and as appears by the evidence.

There was no evidence, nor did the defendants suggest, that the -plaintiffs had, by their misconduct or neglect, prevented the making of a valid award, within the time fixed by the bonds of the parties; the neglect, for aught that appeared, was attributable to the arbitrators, and not to the parties. No action, therefore, could have been-sustained against the defendant on the bond of submission. And as the articles contained, a penalty, and an express covenant by the defendant to pay the instalment for which the action was brought, the plaintiffs could, at their election, sue for either. (1 Chitty’s Plead. 135.) Again, the defendants had simply denied the execution of the bond, and thereby admitted the averment in the declaration, that $800 was due and owing to the 'plaintiffs on these articles. After an admission of record to this effect, a nonsuit, for the reason urged, would have been somewhat singular.

The exception to the charge was too general. It has over and again been held, that a party can take nothing by a *general exception to a charge containing distinct propositions, unless he is prepared to maintain that each of them is erroneous, and to his prejudice.

The defendants, at the trial, offered to prove that at the time of talcing out the attachment mentioned in the pleadings, and at the time of the giving of the bond in suit, the debtor, Brandegee, was not a non-resident of the city of New York, but a resident; that he had been absent about three years, in attending a lawsuit at New Orleans, and returned in the spring of 1848.” The judge excluded the evidence on the grounds— 1. That the offer itself showed the debtor to be a nonresident, at the time when the attachment issued, within the spirit of the act: 2. That the giving of the bond to discharge the attachment, prevented him from showing such fact; and the defendant excepted. This exception presents the only question in the cause, worthy of serious consideration.

The ruling of the judge was probably correct, for the reasons assigned by him. In the Matter of Thompson (1 Wend. 45), the distinction was taken between the residence of the debtor, and his domicil. It was there held, that his residence might be abroad, within the spirit of the statute, which was intended to give a remedy to creditors whose debtors could not be served with process, while his domicil continued in this state. In Frost v. Brisbin (19 Wend. 14), it was said, in a case like the present, that actual residence, without regard to the domicil of the defendant, was within the contemplation of the statute. It was part of the offer of the defendants, to prove, that the debtor left this state in November 1844, and returned in the spring of 1848, and that this absence of three years and a half was necessary to accomplish the business in which he was engaged. He was therefore a non-resident, when the attachment was issued, within these decisions, although domiciled in New York.

Again, the defendant was concluded by his bond, from alleging his residence in this state, in this action. The fact *of residence must, from its nature, be ’ ’ peculiarly within the knowledge of the debtor; he knows what the creditor can only infer from circumstances. The fact itself is not jurisdictional, although competent proof of that fact is. (2 R S. 3, §§ 4 and 5.) This makes the distinction between this case and the one in 6 Cowen 136, and the authorities there cited. Here, the preliminary proceedings were regular, as the defendants themselves assume; the officer, therefore, acquired jurisdiction to issue the warrant, and the property of the debtor was rightfully in the custody of the law, when the bond was executed as a means of discharging the attachment, under the 55th and 56th sections of the statute. In Kanouse v. Dormedy (3 Denio 569), the question was as to the residence of the creditor, and it was held, in a case like the present, that the bond was primé facie evidence of the regularity of the proceedings. (See 26 Wend. 510; Staples v. Fairchild, 3 N. Y. 41)

Again, by §§ 44-5 and 46 of the statute, a mode is provided, in which this question of non-residence can be summarily tried, upon the application of the debtor, and the execution of a bond for costs. If the determination is in favor of the debtor, all the proceedings under the attachment are terminated. (§ 48.) He has, therefore, two remedies for the. release of his property: one, by contesting the fact of his non-residence when the warrant issued; the other, by giving a bond to pay such judgment as shall be subsequently recovered by the creditor in due course of law. When he elects the latter remedy, he ought not to raise the issue which he has voluntarily declined, in a defence to a suit brought for an entirely different purpose, and thereby deprive the creditor of his security for costs, to which he would have been entitled, had the application for a trial been made as provided by the statute.

Judgment affirmed. 
      
       Followed, in Burrill v. Jeivett, 2 Rob. 701.
     