
    EPHRAIM RUNYON, Jr., v. CALEB C. BROKAW ET AL.
    R. and B. were partners in two establishments, one for the tailoring business and the other for merchandizing. They dissolved, and submitted the matters in difference between them to arbitration, and entered into mutual submission bonds, with sureties. The arbitrators awarded that R. should pay the debts of the tailoring business, and pay B. $468.10; and that B. should pay the debts of the merchandising business, in full of all demands by either against the other. After the award, two executions on judgments recovered against R. and B., for debts growing out of the merchandising business, were levied on the goods and lands of R. and B., respectively. R. obtained an injunction against selling his lands before the lands of B. It appeared by the answer, that R. had not paid to B. the $468.10. On motion to dissolve the injunction, an order was made that R. pay the $468.10 on the executions, within thirty days, or that the injunction be dissolved.
    On the 4th of January, 1845, Ephraim Runyon, Jr., and Caleb C. Brokaw, being partners in two separate establishments, one for the tailoring business and the other for merchandising, submitted the matters in difference between them to arbitration, and entered into mutual submission bonds, with sureties.
    On the 1st of March, 1845, the arbitrators published their award, by which it was awarded that Runyon should pay the debts which had grown out of the tailoring business and exonerate Brokaw therefrom ; and that Brokaw should pay the debts which had grown out of the merchandising business and exonerate Runyon therefrom; and that Runyon should pay Brokaw, on or before the first of June then next, $468.10, with the interest thereon from March 1st, 1844, in full of all demands by either against the other, to the date of the submission.
    On the 25th of February, 1845, two judgments were recovered, in the Supreme Court, against Runyon and Brokaw ; on< for $449.69, damages and costs, the other for $379.64, damages and costs, on which judgments executions were issued, and levied, on the 3d of March, 1845, on the goods and lands of Runyon and Brokaw, respectively. The debts for which the judgments were recovered, grew wholly out of the business of merchandising, which, by the award, were to be paid by Brokaw.
    On the 12th of April, 1845, Brokaw made an assignment, under the act, to John Burke, for the benefit off his creditors. There is no partnership property. Runyon filed his bill, stating that he has paid all the debts required by the award to be paid by him ; that the property of Brokaw, assigned as aforesaid, is insufficient to pay his debts; that Brokaw’s surety on the arbitration bond given by him is insolvent; that the sheriff sold his, the complainant’s, personal property, and applied the proceeds thereof, $113.43, towards satisfaction of the said executions; that the personal property of Brokaw was sold on prior executions and exhausted thereby; that a small part of the real estate of Brokaw was sold by the sheriff, and after satisfying pri- or executions a balance of $53 remained in his hands, to be applied towards satisfying the two executions against Runyon and Brokaw. The bill charges that the real property of Brokaw levied on is more than sufficient to pay the two executions ; that the sheriff has advertised the real property of both Runyon and Brokaw, under the two executions; and that the sheriff, by the direction of the plaintiffs in the executions, or of Brokaw and his assignee, intends to sell the real estate of the complainant, Runyon, before selling that of Brokaw. The bill prays an injunction, restraining the sheriff from selling the complainant’s real estate before selling that of Brokaw, and applying the proceeds thereof to the payment of the executions; and that the complainant may be repaid the amount produced by the sale of his goods. The injunction was granted.
    
      The defendants put in their joint and several answer. It appears by the bill and answer, that Runyon has never performed that part of the award which required him to pay to Brokaw $468.10. Burke, Brokaw’s assignee, answering for himself, says that on the 2d June, 1845, he called on the complainant for that money, and told him that on its being paid, he would immediately apply it to the executions, and the complainant refused. That he then asked the complainant to pay the amount to the sheriff, to be applied to the said executions, and that the complainant refused ; and that on the 11th November, 1845, he tendered to the complainant his bond of indemnity against the said judgments and executions, and demanded payment of the balance of said $468.10, after deducting therefrom the amount of the said sales of the complainant’s personal estate and that the complainant still refused to pay.
    The defendants, Brokaw and Burke, answering for themselves, state that they think and believe that the circumstances of the complainant’s surety in his arbitration bond are straitened ; and that they have understood and believe that the complainant, prior to the said judgment, mortgaged his real estate so levied on for $850; and that since the said judgments, he has again mortgaged it for $730, and that it is not worth more than $1600. And the said defendants say there are no debts against the said Runyon and Brokaw, arising out of their said business of merchandising, except the said two judgments and executions, and it is not charged in the bill that there is any other.
    On this answer a motion was made to dissolve the injunction.
    
      W. Thompson, in support of the motion,
    cited 1 John. Ch. R. 211, 244.
    
      A. Whitehead, contra,
    
    cited 2 John. Ch. R. 554, 561; 4 Ibid. 123; 1 Hill’s Ch. R. 351; 2 Mad. 434.
   The Chancellor.

The principle on which relief by injunction was sought by this bill was, that by the effect of the award the debts for which the two judgments were recovered and executions issued became, as between the complainant and Brokaw, the personal debts of Brokaw, and that the complainant should be considered as only surety therefor ; and that, in this state of things, Brokaw’s property should be first sold.

Is the case within the principle contended for ? Is it true that by the award itself, without performance on the part of Runyon, Brokaw became the principal debtor, and Runyon only security ? I think not. The award was an entirety, each part depending on the other parts. Runyon was to pay the debts of the tailoring business, and to pay Brokaw $468.10, and Brokaw was to pay the debts of the merchandising firm. Runyon has not performed his part, and is not in a position to ask the equitable interposition of the court; and particularly as that interposition would subject Brokaw’s assignee and creditors to the risk of loss.

The most the court feels willing to do, is to make an order giving the complainant thirty days within which to pay to the sheriff, towards payment of the executions, the balance of the $468.10, and interest from the date of the submission, after deducting the amount of the proceedsvof sale of the complainant’s personal property; but that, in default of such payment, the injunction be dissolved.

Order accordingly.  