The opinion of the court was delivered by
Thе facts in this cáse all appear upon the bill of exceptions, and the case statеs 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 cannоt, however, take judicial notice of the lаws of Canada, and there being no evidencе before us as to what those laws are upоn .the facts now before us, we are to assumе that there is no distinction between those laws and our own. The question then is, cannot the plaintiff recover the amount
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 еxceptions show that by the laws of- Canada, whеn 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 nо objection that the umpire was appointed before the arbitrators entered upоn 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 aсt in conjunction with the arbitrators.
The evidencе-offered by the defendant that the plaintiff prоcured the award to be made in his favor by means of false testimony induced by him, was properly еxcluded. The award is in the nature of a judgment, and сannot be thus collaterally impeachеd. Bulkley v. Stewart,
If the nоte 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.