Woodrow v. O'Conner , 28 Vt. 776 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

The facts in this cáse all appear upon the bill of exceptions, and the case states that they were not controverted on the trial. It appears that the notes, submission and award were all made in Canada East, where both parties, at the time, resided, and hence it must be regarded as a Canada transaction, and to be governed by the Canada laws. We cannot, however, take judicial notice of the laws of Canada, and there being no evidence before us as to what those laws are upon .the facts now before us, we are to assume that there is no distinction between those laws and our own. The question then is, cannot the plaintiff recover the amount due upon his note ? We discover no reason why the award was not binding upon the parties.

It appears that the parties agreed that neither the arbitrators nor witnesses need be sworn, and the defendant cannot now make such an objection. _ Besides the exceptions show that by the laws of- Canada, when the arbitration is not under a rule of court, the arbitrators and witnesses need not be sworn, unless required by one of the parties. There can be no objection that the umpire was appointed before the arbitrators entered upon the business submitted to them. Roe on the demise of Wood v. Doe, 2 Term. 644; and both arbitrators might well join with the umpire in making the award. See Soulsby v. Hodgson, 3 Burr. 1474; and indeed the submission contemplated that the umpire was to act in conjunction with the arbitrators.

The evidence-offered by the defendant that the plaintiff procured the award to be made in his favor by means of false testimony induced by him, was properly excluded. The award is in the nature of a judgment, and cannot be thus collaterally impeached. Bulkley v. Stewart, 1 Day 130. Page v. Pendergrast, 2 N. H. 234. If there was a binding award between the parties, a recovery may well be had upon the arbitration note, as it is called. It was decided by the supreme court, as early as 1819, that arbitration notes were' valid. Bagley v. Wiswall, Brayton 23. The objection that there is no sufficient consideration is unfounded. The note takes effect from the time it was delivered over to the party by the arbitrators, and if at that time there is a valid award, in a certain sense, the note takes the place of the award, and there is a most ample consideration to support the note. See Batty v. Button, 13 Johns. 187. Page v. Pendergrast, 2 N. H. 233. See also 17 Johns. 301.

If the note is valid, a recovery might well be had on the money count. It seems the plaintiff whived his counts upon the award.

We think the judgment below should be affirmed.