author: By the Court. Campbell, J.

text:
    T. T. Hayes v. Bement and others.
    Where a limited partnership becomes insolvent, and the special partner is a general partner in another firm'to which the limited partnership is indebted, neither the debt due to such firm, nor such general partner’s interest therein, is postponed under the provision of the statute directing that a special partner shall not claim as a creditor against the limited partnership of which he is a member, until the claims of all the other creditors are satisfied.
    Where the same person is a general partner in two different firms, one of which becomes insolvent, indebted to the other, the latter may recover its debt or dividend from the insolvent or bankrupt firm.
    The interest of such general partner in the solvent firm, may be reached by the • creditors of the bankrupt firm and subjected to their debts, by a proceeding against him and the solvent firm for an account.
    (Before Duer, Mason, and Campbell, J.J.)
    Dee. 15, 18, 1849, and Jan. 7, 1850 ;
    Jan. 26, 1850.
    This was a suit commenced in the late coiui of chancery, and transferred to this court from the supreme court. The facts appear sufficiently in the opinion of the court.

      H. F. Ghwk, for the complainant.

      U. Ketchum & T. Fessenden, for the defendants.
   By the Court. Campbell, J.

Thomas T. Hayes, the complainant, loaned his note for $2,000, to the special copartnership of Hayes & Heyer. The'note was payable to the order of, and indorsed by Hayes & Heyer as first indorsers, and by Ketchum, Rogers & Bement as second indorsers. It was discounted at a bank in Connecticut, and the proceeds were paid over to Hayes & Heyer. This latter firm having failed, and made an assign-’ ment to Bement; Ketchum, Rogers & Bement were charged as indorsers, and were compelled to take up the note. They caused proceedings to be instituted, and recovered a judgment against Thomas T. Hayes, the maker. This judgment they sought to enforce by execution, but it still remains unpaid, except to the extent of five hundred dollars, being the amount of a dividend declared by the assignee of Hayes & Heyer.

Morris Ketchum, a member of the firm of Ketchum, Rogers & Bement, was also the special partner An the copartnership trading under the name of Hayes & Heyer, and the former were large creditors of the latter. It appears that the assets of Hayes & Heyer in the hands of the receiver, would be sufficient to pay all their debts, excluding the debt due to Ketchum, Rogers & Bement.

The complainant filed this bill, mainly for the purpose of compelling the postponement of the debt due Ketchum, Rogers & Bement, until the creditors are paid in full, or if not the whole debt, then the interest of Morris Ketchum, the special partner .of Hayes & Heyer, in the debt due Ketchum, Rogers & Bement.

The provisions of the statute on which the complaint relies, (1 R. S. 767, § 23,) are as follows: In case of the insolvency or bankruptcy of the partnership, no special partner shall, under any circumstances, be allowed to claim as a creditor, until the claims of all the other creditors of the partnership shall be satisfied.”

We are not aware that this question has before arisen in our state, and we have therefore listened with attention to the extended arguments which were advanced, and we have endeavored to give to the subject a full and careful consideration. At the same time we think that the question is measurably free from difficulty, and that it may be satisfactorily settled upon the general principles of the law of copartnership, and according to the ordinary and customary proceedings under insolvent and bankrupt laws. Let us suppose that Mr. Ketchum, instead of being*.the special, had been a general partner in the firm of Hayes & Heyer. Then if an act had been passed declaring that in case of the insolvency or bankruptcy of that firm, he, Morris Ketchum, should under no circumstances be allowed to claim as a creditor, until the claims of all the other creditor's of the firm should be satisfied, such enactment would merely repeat what is the well-established rule under the law of copartnership. As the law is established and recognized, no general partner can under any circumstances, claim as a creditor in his own right, until all the other creditors in the firm are paid, when such firm has become insolvent. We apprehend, therefore, that the provisions of the act in relation to limited partnerships, simply place the special partner, so far3as he is a creditor, upon the same footing as if he were a general partner. In both cases the partner must wait until all the other creditors are paid. If he be a general partner, and there is a deficiency, he must lose his capital and his debt, and must in addition make up the deficiency from his private fortune. If he be a special partner, he must lose his capital and his debt, but is not liable for the deficiency.

If the same person be a general partner in two different firms, one of which firms becomes insolvent or bankrupt, while the other firm is solvent and a creditor of the insolvent or bankrupt firm; then it is well settled that the creditor firm may recover its debt or its dividend from the insolvent or bankrupt firm, notwithstanding a member of the insolvent or bankrupt firm is also a member of the solvent creditor firm. (Collyer on Part. 573, &c., and the cases referred to.)

If the assets of the insolvent or bankrupt firm are insufficient to pay and discharge their- liabilities, then undoubtedly their creditors may reach the interest of the partner in the partnership property of the creditor firm; and that upon the plain principle that such partner is liable for all the debts of the insolvent or bankrupt firm. But that interest must be reached by calling the creditor firm to account. The insolvency or bankruptcy of one of its members, may operate as a dissolution of the firm. Its creditors may be different, and they must be first satisfied. When the liabilities are discharged, if any interest remains, belonging to the bankrupt partner, it would of course be applied to the extinguishment of his individual liabilities, or his liabilities as a member of the bankrupt firm. But as we have before remarked, his liability as a member of the bankrupt firm would not necessarily prevent the creditor firm from recovering their debt'or their dividend from the bankrupt firm. We come then to the case before us, and Mr. Ketchum being a member of the creditor firm of Ketchum, Rogers & Bement, that firm may recover their dividend from the assets of the firm of Hayes & Heyer. But the firm of Ketchum, Rogers & Bement cannot be called on to account, because Mr. Ketchum was but a special partner in the firm of Hayes & Heyer, and is not liable to the creditors of the latter firm for any deficiency.

The statute authorizing and regulating limited partnerships, is strict and severe; and though perhaps not unnecessarily so, we are not disposed to put such a construction upon its language as would in a great measure impair the usefulness, if not defeat the objects intended to be accomplished by its passage. The special partner is under disabilities which are not imposed upon general partners, and in consideration, he is relieved from liability, except to the extent of the capital which he may contribute; but as in many, if not most of such limited copartnerships, the bulk of the cash capital is contributed by the special partner, it must generally be for his interest, to sustain as far as possible and safe the partnership when organized, and to prevent its failure or insolvency. If, endeavoring to do this, he becomes a creditor, and still the partnership fails and becomes insolvent, he loses his capital, and his debt is postponed; at the same time he has not directed or managed its affairs. In cases of corporations, a fixed sum may be put in as capital; that sum is all that is put at hazard. The parties contributing it may be, and generally are, the chief managers. If the stockholders loan to the corporation, they are put, in case of insolvency, upon the same footing as other creditors; their debt is not postponed. In limited partnerships, which are a kind of quasi corporations, the special partner who contributes his capital, can have no voice in the management of the business, and if he loans to the firm, his debt must be postponed to those of all the other creditors; and we are now asked to say, that if any other firm of which he happens to be a member shall loan to such copartnership, even though it be without his knowledge, or shall in the usual course of business or dealings become creditors of such copartnership, and such co-partnership shall become insolvent, that then the debt of the creditor firm, or at aE events his interest in such debt, must be postponed.. We confess that we do not believe the legislature so intended, and we do not think it has so said. Had the statute provided that the special partner should not directly or indirectly, neither individuaEy or jointly become a creditor, and if he did, that then any debt due to him individuaEy, or his portion of a debt due jointly, or Ms interest in any debt due to any other person or persons, corporation or corporations, or to any partnership, whether general or limited, should be postponed, the case would be different. As it now is, we consider that the legislature simply intended to put the special partner, so far as he is a creditor, upon precisely the same footing as if he were a general partner.

We have seen that if Mr. Ketchum were a general partner, neither the debt due Ketchum, Rogers & Bement, or his interest in it, could be postponed, nor can their debt or Mr. Ketchum’s interest in it be in this case postponed.

The bill does not in direct terms charge that the special partnership was insolvent, but as it might perhaps be amended in this respect, and as from the testimony it appears that it was insolvent, we have not considered this objection as material, and have preferred disposing of the case upon its merits. It is disclosed in the answer that a dividend of five hundred dollars was declared upon the note on which the judgment was obtained against the complainant, and yet after tMs divedend, the defendants sought by execution to enforce the recovery of the whole judgment. The complainant, having failed in the main object of Ms suit cannot be entitled to costs, and the defendants having neglected to give the complainant notice of the dividend, and having sought to enforce the collection of the whole judgment, do not stand before us in a position to entitle them to costs from the complainant. The five hundred dollars must be credited upon the judgment; and the bill must be dismissed, but without costs.


source: Caselaw Access Project

author: By the Court. Paine, J.

license: Public Domain

text:
    Ward v. Whitney and Sturges.
    A charter party was entered into between the master of a vessel, on behalf of the . owner, and one T., by which the vessel was to carry for T., from Pictou to New York, a full and complete cargo of coals; for which freight was “payable, at four dollars per chaldron, Pictou mines measure of 30 cwt., in approved acceptance of 30 days.” The coal was not weighed at Pictou, nor measured with any accuracy ; but the bill of lading stated the cargo consisted of four hundred chaldrons of the Albion mines measure. On discharging the cargo at New York, there proved to be nearly four hundred and sixty chaldrons. Held, that there was nothing in the charter party which made the measuring or weighing conclusive upon the parties, and that the owner of the vessel was entitled to be paid four dollars for every thirty hundred weight.
    And T.’s agent, to whom 'the cargo was delivered in New York, oifering to pay in cash, the freight as specified, on four hundred chaldrons only, and refusing to settle on any other terms; held, that by such refusal the owner was discharged from the obligation of waiting for the expiration of the thirty days, before commencing proceedings for the recovery of the freight.
    Where the master of a vessel has merely an equitable interest in her, under a contract with the owner, to become the owner of one eighth part whenever he shall pay for it; the vessel, in the mean time, being run for their joint account, but entirely subject to the control of the owner ; the master has not such an interest as to make him a necessary party to proceedings instituted by the owner for the recovery of freight earned by the vessel.
    It is well settled, that a party must object to the competency of proof, at the first opportunity. Thus, when a paper is attempted to be proved by a witness, whose deposition is taken before the trial, any such objection to the proof must be made at the time of taking the-deposition. If not then made, the party will be precluded from raising it on the trial.
    The statute requirement that there shall be two sureties in a bond to procure the discharge of an attachment upon a vessel, is for the benefit of the creditor; and he may dispense with more than one, without invalidating the bond.
    (Before Oaklet, Ch. J., and Paine, J.)
    Jan. 16 ;
    Jan. 26; 1850.
    This was an action upon a bond given by the defendants under the statute, in order to discharge the proceedings upon an attachment against one Tremlett, a non-resident debtor. The bond was conditioned to pay the attaching creditor, the amount which Tremlett justly owed him, &c. It was executed by Whitney, the agent of Tremlett, with one surety only. The principal facts are set forth in the opinion of the court. The declaration, after stating the proceedings under the statute, set up a claim of the plaintiff against Tvemlett, for the freight of coal carried under an unsealed charter party from Pictou, H. S., to Hew York, in the ship James Edward, and for demurrage while the ship was at her port of discharge. It contained counts both for the non-delivery of an acceptance,'and for the freight itself. It was provided in the charter party, that the freight should be paid at the rate of four dollars per chaldron, Pictou measure of 30 cwt., by an approved acceptance within thirty days from the period of discharging the cargo.
    At the trial before Yabderpoel, J., on the 16th October, 1848, the execution of the charter party was proved by the captain of the vessel, and that under it he went to Pictou, and obtained a cargo, with which he proceeded to Hew York. The coal was not weighed at Pictou. The bill of lading signed by the captain, described the cargo as consisting of four hundred chaldrons. In the margin of the bill, were these words, “weight of chaldrons unknown,” written by the captain. It appeared by the testimony of one of the measurers of the custom house, who was employed to measure the cargo, that the same consisted of 451 chaldrons. It also appeared that on the arrival of the vessel, she was detained twelve days longer in discharging her cargo than the terms of the charter party allowed, which delay was occasioned by the consignees; and that fifty dollars per day was a proper allowance for demurrage.
    Objections were taken on the trial to the competency of the captain of the vessel, and to the maintenance of the action, on the ground of his being a part owner in the vessel; also to the admissibility of the charter party, without the testimony of the subscribing witness, both of which were overruled. As to the former point, it appeared from the testimony of the captain, that he had, some five years before, made a verbal contract with the owner, for the purchase of an interest in the vessel, which, however, had never been consummated; and that since the making of the contract he had received a portion of the profits of the voyages. A release was executed on the trial, by the captain, to the plaintiff of all his interest in the subject of the suit. The defendants had offered to pay for the freight of 400 chaldrons of the coal, but declined paying for more.
    The jury found a verdict for the plaintiff for $2,156 85.

      F. JB. Cidtrng, for the plaintiff.

      A. F. Smith, for the defendant.
   By the Court. Paine, J.

It appears in this ease, that the charter party was executed by J. B. Dowd, agent for Tremlett, and attested by a subscribing witness. It contained a stipulation, that “ freight should be payable at four dollars per chaldron, Pictou mines measure of 30 cwt., in approved acceptance of thirty days from the period of discharging the cargo, and twelve days allowed for discharging in New York.” At the foot of the charter party was the following direction in Dowd’s handwriting, to the master, to whom the charter party was delivered—“ On arrival at Pictou, you will address yourself to Mr. Henry Poole, the superintendent at the mines, who will be instructed to give you every possible dispatch.”

The vessel was loaded at Pictou in the usual manner. The coal was brought to the ship, from the mines, in cars unequally loaded, and the weight of the coal was not ascertained. The master signed a bill of lading containing the same stipulation as the charter party, and noted in the margin, weight of chaldrons unknown.”

By the bill of lading, the cargo was deliverable to Tremlett or his assigns ; and on the ship’s arrival at New York, the defendant Whitney’s house, of Soule, Whitney & Co., claimed to receive the cargo as the agents of Tremlett, and it was delivered to them. It turned out, that instead of four hundred chaldrons of coal, of thirty cwt. to the chaldron, there were nearly four hundred and sixty chaldrons.

After the delivery of the cargo, the plaintiff, who was owner of the vessel, presented a bill to Soule, Whitney & Co., for the freight of 458{- chaldrons of coal, with this note at the foot: “ Satisfactory acceptance at thirty days, from Nov. 8th, 1841,” (the time of the delivery.) Soule, Whitney & Co., declined to settle the bill, but said they were ready to pay in cash (deducting interest for the thirty days) for four hundred chaldrons, at four dollars, and when urged by the plaintiff to settle, they refused to settle upon any other terms. The plaintiff then said he would attach a cargo belonging to Tremlett; and Soule, Whitney & Co., replied, “We have to settle only for four hundred chaldrons at four dollars each.” The plaintiff then began his attachment proceedings, before the thirty days had expired.

The defendant Whitney, who was examined by the plaintiff on the trial, stated that he knew the terms of the charter party; that he. received it inclosed in a letter addressed to him by Tremlett ;• and that the terms of the charter party were discussed between him, and the plaintiff. The defendants’ counsel did not raise the question at the trial, whether the charter party received by Whitney, was in any respect different from, that delivered to the captain of the ship, and offered in evidence on the trial by the plaintiff.

The captain of the vessel, who was the plaintiff’s principal witness, was, during the whole of the voyage, entitled, under an agreement with the plaintiff, to an eighth of the vessel, on his paying for it, but the vessel was held by the plaintiff, under a bill of sale to himself, and stood in his name alone. The captain, however, shared in the profits and losses of the vessel up to the period when he decided not to become an owner, which was not until after this voyage was wound up. On the trial, the captain executed a release to the plaintiff to remove the objection of interest, but the defendants still insisted, that he should, on account of his interest in the vessel, have been joined as a co-plaintiff in the action and proceedings under the statute.

The defendants’ counsel also insisted on the trial, that the charter party was not sufficiently proved, without proof of the handwriting of the subscribing witness, who resided in London. He also objected, that the proceedings were instituted before the expiration of the thirty days; that the bond declared upon was void, because it was executed by Tremlett’s agent with only one surety; and that no evidence should have been received, showing the actual weight of the coal, the parties being bound by the Pictou chaldron, as per bill of lading. And upon all these points which were ruled against him, the defendant took exceptions.

We do not think there is much intrinsic difficulty about any of these objections. The master was never the legal owner of this vessel. He had an interest in her, under a contract with the plaintiff to become the owner of an eighth part whenever he should pay for it. In the mean time the vessel was run for their joint account, but entirely subject to the plaintiff’s control as owner. It is a transaction of the most ordinary occurrence, and in which the real owner always acts, and is regarded, as a trustee for the person who has a right to become the purchaser. It is true, that one may be a legal owner of a vessel without written evidence of ownership; and it is equally true, that one may be only equitably interested and yet have full evidence in writing of his interest. It is the nature of the interest, and not the evidence of it, which determines whether he is legal owner. There ' is no difference in this respect between property in ships and other property. In this case the master had merely an equitable interest under a contract, and, by the rules of pleading, should not have been made a co-plaintiff.

It is a well settled rule of evidence, that a party must object to the competency of proof at the first opportunity; and, when a paper is attempted to be proved by a witness, whose deposition is taken before the trial, any such objection to the proof should be made at the time of taking the deposition. In this case, Webster, the master, was examined some months before the trial, and proved the execution of the charter party by Tremlett’s agent. No objection was then made to the sufficiency of the proof, or that the paper should have been proved by the subscribing witness. This precluded the defendant from raising the question at the trial. But, independently of this, the charter party was not an instrument executed and laid aside, merely as evidence of the rights of parties. At the bottom of it were written directions from Tremlett’s agent to the master, for his government, and which the witness did not subscribe. In this state, the charter party was- delivered to the masterand the cargo was expressly received and delivered under it; and the agents of Tremlett, as well as the master, regarded it, and acted under it, on all occasions, as the contract between the parties. Under such circumstances, it would be but a perversion of a rule of evidence to require, that it should be proved by the subscribing witness.

The conduct of Tremlett’s agents in Hew York, when called upon for a settlement, whether we regard it as a refusal to perform the contract, or as a waiver of the thirty days credit, discharged the plaintiff from the necessity of waiting for the expiration of the thirty days, before he commenced his proceedings. If Tremlett’s agents, who 2’eceived the cargo, had no authority to give the acceptance, as the defendants insisted at the trial, then there was so much the more reason for the plaintiff’s being allowed to proceed at once.

As to the objection that the bond was signed by only one surety, the language of the statute is, that the bond shall be executed by the non-resident debtor or his agent, “with such sureties as shall be approved.” The plurality of sureties is for the benefit of the creditor, and he may dispense with more than one, without invalidating the bond.

The point to which most importance seems to have been attached by the defendants, is that by the terms of the charter party, the plaintiff was bound to receive the coal as four hundred chaldrons, Pictou mines measure of thirty cwt., because Tremlett’s agent delivered it to him as such; that the expression in the charter party “ thirty cwt.” was mere surplusage; and that he had no right to have the weight of the chaldrons ascertained. This is the defendants’ view, so far as we have been able to understand it. We think, on the contrary, that the thirty cwt. is a very material expression in the contract. It is a defining and restraining clause, and has very much the appearance of having been inserted at the master’s desire or suggestion, either from a knowledge of the way in which vessels were loaded at the mines, or from a distrust of the uncertain meaning of the word chaldron. Its importance in this case appears from the fact that about an eighth more cargo was put on board the vessel under the contract, than was agreed for.

The plaintiff was entitled to be paid four dollars for every thirty hundred weight. There is nothing in the charter party which makes the measuring or weighing at Pictou conclusive upon the parties. It appears, in point of fact, that it never was measured there with any accuracy, and never was weighed at all. But had it been, there is no reason why any mistake or inaccuracy should not have been afterwards corrected.

The motion for a new trial must be denied.


author: By the Court. Oakley, Ch. J.

text:
    Schultz v. Halsey.
    Where an award, signed and sealed by two arbitrators, after describing themselves as persons to whom the matters were submitted, proceeded to state that they having heard the proofs, &c. of the parties, and examined the matters in controversy, thereby made their award setting it forth; it was held that parol proof was competent to show that a third arbitrator, to whom with those two the matters were submitted, was present at the hearing and final submission of the cause.
    Where a submission to arbitration under seal, recited a controversy arising under a contract, dated March 20th, and the award was upon a controversy arising under one dated March 21st, and both instruments expressed a dispute on the same sub jeet, there being no pretence in the pleadings or evidence that there were two contracts or two disputes between the parties, it was held, that the variance was properly disregarded at the trial.
    After three arbitrators have heard the proofs, &c. of the parties, and the matter has been finally submitted to them, and they have adjourned to a fixed time to make their award, the absence of one at that tune will not prevent the other two from proceeding and making a valid award.
    (Before Oaklet, Ch. J., and Paine, J.)
    Jan. 16;
    Jan. 26, 1850.
    The complaint in this cause claimed damages for the defendant’s breach of covenant in not furnishing the plaintiff with steam power for his manufactory in the lofts of the premises, Hos. 58 and 60 Yesey street, pursuant to the terms of a lease thereof to him by the plaintiff, dated March 21,1848. The complaint was verified July 3,1848.
    The answer, among other things, set up an arbitration between the parties respecting the matters in controversy in this suit, and an award made by two of the arbitrators, on the first day of July, 1848, by which they found that the plaintiff had sustained six cents damages, by reason of the breach of covenant in question.
    The reply stated, that the arbitrators did not hear the proofs and allegations of the parties ; and that the plaintiff revoked the submission in due form, before the cause was finally submitted to the arbitrators.
    The cause was tried before Saítofobd, J., April 11th, 1849. The plaintiff proved the lease, and that the defendant did not furnish the steam power stipulated for. He also gave evidence as to the amount of his damages in consequence of the breach.
    The defendant proved the execution of arbitration bonds between the parties, dated June 26th, 1848, by which they submitted their controversy as to the amount of damages sustained by the plaintiff, by reason of the defendant’s not furnishing to him steam power in pursuance of a contract dated March 20th, 1848, to the arbitrament of Charles Fowler and John H. Eigby, and to a third arbitrator to be chosen by them. The bond recited that the defendant had no claim on the plaintiff for rent under the contract, by reason of his not performing that part of it relating to steam power. The two arbitrators named, on the same day appointed W. A. Kentish as the third, and his appointment was assented to by the parties on the same day, both being in writing.
    The defendant then proved an award in writing under seal, signed by Fowler and Kentish, two of the arbitrators, dated July 1st, 1848, in these words, viz.
    “ To all to whom these presents shall come or may concern, we the undersigned, Charles Fowler and William A. • Kentish, to whom was submitted as arbitrators the matters in controversy existing between Joseph Schultz and Samuel F. Halsey, as by the condition of their respective bonds of submission, executed by the said parties respectively, each unto the other, and bearing date the twenty-sixth day of June, one thousand eight hundred and forty-eight, more fully appears.
    “ Now, therefore, hnow ye, that we, the said the arbitrators mentioned in the said bonds, having been first duly sworn according to law, and having heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing, that is to say, the said Joseph Schultz has sustained damages by reason'of the said Samuel F. Halsey not furnishing the said Joseph Schultz with steam power, in pursuance of a contract signed by him, dated March 21st, 1848, and all matters relating thereto to the sum of six cents.”
    The award was duly witnessed, and a duplicate was delivered to the defendant the morning of the first of July. The plaintiff about nine o’clock A.M. of that day, served on the defendant and the three arbitrators, a revocation in writing of the submis- * sion, and refused to recognize their powers thereafter. Nevertheless the two arbitrators completed and signed their award; after that service, Rigby refusing to act further with them. Evidence was given on the part of the defendant to prove, that the cause was finally submitted to the arbitrators, upon a hearing of the parties, for their decision, on the 30th day of June, 1848, and on the part of the plaintiff to prove, that the cause was not so finally submitted on that day. The plaintiff objected to any evidence by parol, that the cause was submitted to the three arbitrators, as contradicting the award, which recited that it was submitted to two only. The judge overruled the objection.
    The plaintiff’s counsel asked the court to charge the jury, that the award is conclusive that the three arbitrators did not hear the proofs and allegations of the parties, and is therefore void. That the award does not recite truly the bond of submission, and therefore is a void award under that submission. That it not having been shown that the award was ready to be delivered to the parties, on or before the Jth day of July, 1848, as required by the bond of submission, the award is therefore void.
    That the arbitrator, Rigby, not having wilfully refused to meet and discuss what the award should be, but because he supposed Ms power revoked; the absence of Rigby, on the final making of the award, makes the award void. And that there being no evidence of notice to Rigby by the other arbitrators, of the time when and place where they would meet to make their award, the award so made is void, notwithstanding he refused to go on previously.

      The court refused to charge the jury as requested, and the plaintiff’s counsel excepted.'
    The court charged the jury, that the defendant was liable for the damages occasioned by the breach of his covenant, unless the claim was barred by the award. He left it to the jury to determine on the evidence, whether the cause, after having been left, to arbitration, under the arbitration bond in evidence, was finally submitted to the arbitrators upon a hearing of the parties, on the 30th of June, 1848, for their decision; and instructed them, that, if they found the cause had been so finally submitted on that day, the defendant was entitled to their verdict. If it were not, then the plaintiff was entitled to recover such damages as he had proved. The plaintiff excepted to the charge as to the arbitration. The jury found a verdict for the defendant, arid the plaintiff appealed from the judgment.

      F. 8. StaWhneeJit and T. G. Taloott, for the plaintiff.

      W. Silliman, for the defendant.
   By the Court. Oakley, Ch. J.

The defence in this case rested upon the submission of the matters in controversy to arbitration, and an award made under the submission.

The first question raised is upon the recital in the award, which speaks of two only of the arbitrators having heard the proofs and allegations of the parties, whereas the evidence on the trial showed that all three were ¡rresent. It was objected by the plaintiff that this evidence, being by parol, was inadmissible. We think the fact might be proved by such evidence. It does not contradict the award or alter it in any respect. The recital in the award is true, so far as the facts are stated. The statement is consistent with all three of the arbitrators having heard the proofs and allegations.

The next objection is, that the dispute decided by the arbitrators, was not the one submitted to them. That is, the bond of submission states a controversy arising under a contract dated March 20,1848, and the award is upon one dated March 21,1848. We think this variance was rightly disregarded. The statement of the question in dispute in the bond and in the award, shows that the latter was identically the same with the former, the pleadings in the cause show that the contract out of which it arose, was dated March 21,1848, and there is no pretence that there ever was more than one contract or more than one controversy between the parties.

The only remaining point that requires our notice, is the omission to prove the delivery of the award to the plaintiff within the time prescribed. It is a sufficient answer to this that there is no issue upon it made by the pleadings. If there were, we should hold that his attempted revocation of the submission was a waiver of the requirement for the delivery of a copy to him.

A question was made as to Rigby’s absence when the award was signed. He was present at the hearing and final submission of the matter, and met with his associates pursuant to. appointment, to make their decision. His absenting himself on their proceeding to make it, did not affect its validity, whether his absence was Giving to his supposition that the submission was legally revoked, or to his having ascertained what the award was to be. Judgment affirmed.


text:
    Chegaray v. Jenkins.
    The act of April 6, 1825, respecting the collection of taxes in the city of New York, which declared or limited the meaning of the act for the assessment and collection of taxes, passed on the 23d of April, 1823, by providing that “ the exemption from taxation of any building for public worship, or any school, under and by virtue of the third section of the act of 23d of April, 1823, shall not extend or apply to any such building or premises in the said city, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society or the New York Free School Society,” is still in force, and was not affected by the general repealing act (3 Rev. St. 165, § 398.)
    Premises in the city of New York, occupied by the lessee as a boarding and day-school for young ladies, are liable to taxation, and are not exempted therefrom by the provisions of the revised statutes, (1 Rev. St. 387, § 4.)
    The usual, if not the universal, mode of repealing statutes is to distinguish them by their name or title. And it would not be safe to admit of a less degree of certainty in an express repealing statute; uile-s possibly in a case where something in the nature, object, or spirit of the subject matter shows a clear intent.
    (Before Oakley, Ch. J., and Paine, J.)
    Jan. 18;
    Feb. 9, 1850.

      This was an action to recover damages for the talcing and conversion of personal property belonging to the plaintiff, by the defendant, under a warrant for the collection of taxes imposed by the supervisors of the city and county of Hew York. The pleadings were under the code.
    At the trial in October, 1849, it appeared that the plaintiff was the lessee of the premises 14, 16, and 18 Union Place, in the city of Hew York, occupied by her as a boarding and day-school for young ladies. That the premises were originally planned for three separate houses; but by an arrangement between the plaintiff and the owner during their erection, were altered so as • to be connected together, for the purpose of a school. The premises were assessed for taxes as follows: Upon Ho. 14, the sum of $55 ; on Ho. 16, $125 51; and on Ho. 18, the sum of $57, being in all $237 SI. The assessment was duly confirmed by the board of supervisors, and a warrant issued to the receiver of taxes for their collection. The taxes not being paid, a warrant was issued by the receiver to the defendant, who was a constable of the city, under which he levied upon the property of the defendant, and took the same into his possession. It appeared by the circular of the plaintiff, which was read in evidence by the defendant’s counsel, that the premises in question were used for the purpose of a boarding-house for the pupils in connexion with the school, and that various charges were made for fuel, washing, &c., irresjiective of tuition. It was admitted by the defendant’s counsel that the premises in question were occupied by the defendant in accordance with the terms expressed in the circular, and for the purposes therein mentioned; also that Columbia College and the Hew York University buildings had been and were used for the purpose of dwelling-houses for professors, and lodgings for students, and that portions of these buildings had been at times let out for purposes unconnected with education.
    A verdict was taken for the plaintiff, by consent, under the charge of the judge made jto formé, for six cents damages and six cents costs; and judgment was entered in favor of the plaintiff for that sum, and the defendant appealed.

      T. W. Tuclcer, for the plaintiff.

      I. The premises occupied by the plaintiff at the time of the distress, were specially exempted from taxation by the revised statutes, having been erected for and exclusively used as a seminary of learning, and being, in their present form, useless for any other purpose. (1 Rev. St. 441, 3d ed.) They were erected by her under the sanction of an act of the legislature, which was intended, at the time of its passage, to incite individual enterprise in the cause of education, and it is so to be construed. It was never intended by the framers of the act in question, nor of any preceding act in relation to taxes, that a seminary of learning should be construed to mean a public institution, as distinguished from one owned by private citizens.
    II. The legislature have repeatedly affirmed this construction of the statute; inasmuch as the act of April 23d, 1823, for the assessment and collection of taxes, (Laws of 1823, p. 390,) exempts every college, incorporated academy, and every building used for a school-house, and all the real and personal property belonging thereto. And the subsequent act of April 6, 1825, § 19, which limited this exemption, continued the exemption so 'far as related to school-houses owned by religious societies and the public school society. And in the general revision of the laws of the state, the general repealing act, § 398, repealed the act of April 23d, 1823, and all acts amendatory thereof, (including that 19th section,) and the act at present in force was substituted in place of all previous existing laws, (1 R. S. 442, 3d ed.) by which every building erected for the use of a college, incorporated academy, or other seminary of learning, are exempted from taxation.
    ITT. The legislature has exempted from taxation, buildings which undeniably are the production and property, in whole or in part, of private enterprise, and have also exempted from taxation buildings that are not exclusively occupied for educational purposes ; such as the colleges mentioned in the case.
    The plaintiff, therefore, has a right to ask the court for a construction of the statute allowing an exemption in favor of private seminaries, although in part occupied as dormitories and refectories. (Dwarris on Statutes, 608,162,190 ; Smith’s Commentaries, 620, 630, 635.)

      The words, “ seminary of learning,” have a definite, well authenticated meaning, and the court cannot give judgment against the plaintiff, without assuming the duties which properly belong to the legislature.

      H. E. Ernies, (corporation counsel,) for the defendant.
    I. The premises occupied by the plaintiff at the time of the' assessment, were used for a school house and boarding house. The-act^ of April 23, 1823, (Laws of 1823, p. 390,) exempts from taxation the real estate “ belonging to” any college or incorporated academy, or any building for public worship, school house, court house-, &c. This provision is re-enacted in the revision of 1830. (See 1 Rev. St. 388, § 4, sub. 3.)
    The act of April 6, 1825, entitled “an act respecting the collection of taxes in the city of Hew York,” declares that the above exemption of any building for public worship, or any school, shall not extend or apply to any such buildings or premises in the said city, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society, or of the Hew York Eree School Society. This law remains in full force and unrepealed. (3 R. S. 641.)
    II. The premises in question cannot be regarded solely as a school house. The circular of the plaintiff shows that they were occupied as a boarding house; that the plaintiff derived profit for such use, independent of the occupancy of them for a school.
    HI. The tax was legally imposed, and the plaintiff is liable to pay the same. If otherwise, the plaintiff having omitted to take the step pointed out by the statute for a correction of the assessment, the regularity of it cannot be impeached collaterally.
   By the Court. Paine, J.

This was an action against the defendant, who was a city constable, to recover damages for the seizure and sale of goods under a warrant of the collector of taxes, upon a house and lot in the city of Hew York, imposed by the supervisors.

The plaintiff insists that her house is exempt from, taxation, under the statutes of the state, because it was erected for and is used as a seminary of learning. It appears that the building was, in fact, finished for a young ladies’ boarding and day-school, and has been occupied for that purpose ever since its erection. It covers three lots, and consists of three ordinary large-sized dwelling-houses thrown into one, and is principally used for the accommodation of boarders.

The plaintiff relies for the exemption claimed by her, upon the eighth chapter of the first part of the revised statutes, which provides for the “ assessment and collection of taxes.” The fourth section of the first title, in enumerating the kinds of property exempt from taxation, provides that “ Every building erected for the use of a college, incorporated academy, or other seminary of learning; every building for public worship; every school-house, court-house, and jail; and the several lots whereon such buildings are situated, and the furniture belonging to each of them,” shall be exempt from taxation.

It is urged on behalf of the plaintiff, that the premises are a seminary of learning, within the meaning of this statute. It is very questionable, however, to say the least, whether upon a just construction of it, boarding-schools of this description are comprehended within its letter or spirit. This school was established by private enterprise, is under no legal or public control, and is no more of a public character than any boarding-house or other private property used for the accommodation of the public. On the other hand, the institutions among which seminaries of learning are classed in this statute, are not merely of a public character, and under the management and control of the public, but are incorporated and endowed by the state. The clause is, “ Every building erected for the use of a college, incorporated academy,-or other seminary of learning.” The maxim nosoit-wr a sogUs appears ‘to be applicable here, and to limit the exemption from taxation to such seminaries alone as are incorporated. The expression was, no doubt, intended to cover such incorporated institutions of this description, as might not be properly called colleges or academies.

Neither does it appear to us that the school in question is any more within the spirit than the letter of the statute. We certainly do not mean to detract from the great responsibility and usefulness of this and similar schools; but taxation is designed to be an equal burden upon all; and if any inequality is allowed to exist, it is supposed to be in favor of the poor rather than of the rich. Boarding-schools, however, are not within the reach- of the poor. Their children live in such accommodations as can be provided for them at home, and are taught at schools which are common to all, and which are expressly exempted from taxation. If boarding-schools, therefore, were exempted from taxation, it would be exclusively for the benefit of the rich.

The exemption claimed would seem, too, to be as impolitic as it would be unequal and unjust. The law, while it exempts public property, seeks to subject all private property, or property devoted to private benefit, to taxation. How boarding schools do not merely furnish a place for the instruction of their pupils ; that is but a small part of the use to which they are devoted; they also provide accommodations for considerable portions of the families of the rich. If the children of the rich are kept at boarding schools, as they often are, for a great 'part of their childhood and youth, it is quite -obvious, that their parents, by being freed from the necessity of supporting them, and providing apartments for them at home, are to the same extent, if they choose to be, relieved from taxation.

But whatever doubt there may have been upon this question, appears to have been removed by legislative construction. The chapter which I have cited from the revised statutes, is a reenactment with some alterations of “ an act for the assessment and collection of taxes,” jjassed April 23, 1823. (Laws of 1823, p. 391, § 3.) This act provides, that no college or incorporated academy, nor any building for public worship, school house,” &c., shall be liable to taxation. The plaintiff’s boarding school could not have been comprehended in this act, except under the word “ school house.” The legislature, by the act of April 6, 1825, entitled “ an act respecting the collection of taxes in the City of Hew York,” (Laws of 1825, p. 129, § 3,) have declared or limited the meaning of the act of 1823 in this particular, by providing, that “ the exemption from taxation of any building for public worship, or any school under and by virtue of the third section of the act of 23d April, 1823, shall not extend or apply to any such, building or premises in the said city, unless the'same shall be exclusively rised for such purposes, and exclusively the property of a religious society, or the ISTew York Free School Society.”

It was admitted, on the argument, by the counsel of both parties, that if the act of 1825 was still in force, it settled the question; but the plaintiff’s counsel contended that that act had been repealed by the general repealing act of the revised statutes, and that the question was unaffected except by the chapter which I have cited from the revised statutes. And he contended that the act of 1825 was repealed in this manner : The general repealing act (3 R. S. 165, § 398) repeals the act of 1823, and “ all acts amending the same.” And he insists that as the act of 1825 amends the act of 1823, the act of 1825 is repealed.

Perhaps the act of 1825 does, in this single particular, in effect, amend the act of 1823 ; but it does not purport to be, and is not entitled, an amendatory act. We do not think, therefore, that it comes within the repealing statute. It is not to bo supposed, that in framing the repealing statute, the legislature intended to describe the acts repealed by their contents, various, promiscuous, and unrelated as the contents of some of those numerous acts were. The usual, if not the universal, mode of repealing statutes is, to distinguish them by their name or title. And it would not be safe to admit of a less degree of certainty, in an express repealing statute; unless possibly in a case where something in the nature, object, or spirit of the subject matter showed a clear intent. Such is not the case here. And I think an examination of the repealing statute, will show that the rule we have adverted to was uniformly acted upon by the legislature in framing that act.

Besides, the list of acts not repealed by the revision, published in the third volume of the first edition of the revised statutes, (3 R. S. 660,) contains this act; and the revisers in their preface to that volume say, that that and the other lists published in that volume, were inserted in compliance with the directions of the legislature.

The judgment in favor of the plaintiff, at the special term, must be reversed, and judgment entered for the defendant.