Steele v. Towne.

plaintiff commenced said suits, and the same were continued from term to term, as specified in the plaintiff's account. The defendant did not agree to pay the plaintiff for his services in said suits, nor in any manner become liable to pay the advances made by him, except as above stated. Spear was not responsible as represented by the defendant, and never appeared in said suits, or gave any instruction in regard to the same, or recognized them in any manner whatever, subsequent to sending the papers to the plaintiff by the defendant, as above stated. The auditor decided that the representations and declarations of the defendant, as above set forth, did not constitute such an undertaking as would render the defendant liable to the plaintiff in this action, either for his professional services or for the advances made by the plaintiff, as charged in his account, and disallowed all of said items; but reported further in reference to them, that at the time of the service of the plaintiff's writ, in this action, the defendant told the plaintiff it was a debt of long standing, and he would pay it, but that it did not belong to him to pay,-that it was the business of another man, and he (the defendant) had got into the difficulty by carrying papers which belonged to another.

At the request of the defendant, the auditor further reported the following facts, viz.: During the years the plaintiff's charges purport to have been made, the plaintiff was doing but little professional business, and was accustomed to make his charges and keep his account for the same on slips of paper, and his account against the defendant was so made and kept, and never was entered upon any book. After a part of these charges were made, the plaintiff went into bankruptcy, and his books and credits were passed into the hands of R. C. Benton, assignee; no charges or accounts against the defendant appeared in said book and credits, nor was said account against the defendant included in the schedule annexed to the plaintiff's petition, to the district court, for the benefit of the bankrupt law; which schedule purported to contain an accurate inventory of the plaintiff's property, rights and credits of every kind and description.

The county court, May Term, 1854,-POLAND, J., presiding,decided that the plaintiff was entitled to recover the amount of his charges for cash advanced in the suits of Arunah Spear, but was

Steele v. Towne.

not entitled to recover any of his other charges. To this decision both parties excepted.

for the plaintiffs.

for the defendants.

The opinion of the court was delivered by

BENNETT, J. We think the first item in the plaintiff's account is not barred by the statute of limitations. The plaintiff declared, and so testified, that, "if he owed the plaintiff anything he was willing to pay him." The auditor has found that the services were rendered, as charged in the plaintiff's account, and that the same have never been paid. Though the admission is conditional in its terms, yet, when it is proved that the defendant owes the plaintiff, it becomes absolute in its effect. The fact that the defendant, at the time, supposed he did not owe the plaintiff anything, and so claimed, cannot alter the case. His impression that he had paid the plaintiff does not evince an unwillingness to pay him, if the fact of payment should be found against him. In Paddock v. Colby, 18 Vt. 485, there was a denial of anything due, yet a willingness to settle the debt, if established; and in Hill v. Kendall, 25 Vt. 528, the defendant said, if he had not paid the debt he would pay it; and, in both cases, a debt being found to be due the plaintiff, it was held that the statute bar was removed. This case is within the principle of those cases.

We think the other part of the plaintiff's claim is within the statute of frauds. The defendant requested the plaintiff to bring the suits for Spear, and had authority to do so from Spear; and, when the plaintiff refused to bring the suits unless the defendant would become responsible to him for his advances, he assured the plaintiff that "Spear was good, and, if not, that he was." The auditor finds that the defendant was not liable, except as above stated, and though it is found that Spear was not responsible, yet the defendant is not chargeable with having acted in bad faith.

There was an original liability on the part of Spear. The defendant was the agent of Spear to carry the papers to the plaintiff and request the suits brought, and this agency was made known to the plaintiff. There is nothing in the case to show anything more

Steele v. Towne.

than a collateral undertaking on the part of the defendant. "Spear is good, if not, I am." The meaning of which is, if he does not pay you for the advances, I will. The case is always within the statute of frauds, where the undertaking is collateral. What was said by the defendant to the plaintiff, at the time the writ in this case was served upon him, clearly had reference to the claim of of the plaintiff for advances in the Spear suits, that is, "that it did not belong to him to pay,-it was the business of another man, and he had got into difficulty by carrying papers which belonged to another." Though he said, in the conversation, the debt was of long standing, and he would pay it, yet there was no consideration for this promise, and it could not convert a collateral promise into an original one.

We think that, notwithstanding what is said in the report about the plaintiff's going into bankruptcy, in 1842, he may still maintain his action on this account. No charges or accounts against this defendant appeared upon the plaintiff's books, and this claim of the plaintiff was not included in the schedule of claims annexed to the petition of the plaintiff to the district court of the United States, seeking for the benefit of the bankrupt law. Although the schedule professed to contain an accurate inventory of the plaintiff's property, rights and credits, of every kind and description, yet the present claim was not before the district court, and was not a subject of their action; and we apprehend the defendant cannot set up the facts detailed in the report to toll the plaintiff's right to maintain this action against him.

The judgment of the county court is reversed, and judgment entered up on the report, upon the principles herein settled.

Woodrow v. O'Conner.

JOHN WOODROW v. JOHN O'CONNER.

Foreign law. Arbitration note. Award.

If the subject-matter of a controversy in our courts arose in a foreign jurisdiction, by the laws of which it should be governed, it cannot be judicially noticed that those laws are different from our own, unless they are shown, by evidence, to be so An arbitration note, or a note executed and placed in the hands of arbitrators to be delivered to the other party, if he should recover, becomes a valid obligation upon the making of a valid award in his favor, and the delivery of the note to him; and when so delivered, a recovery may be had upon it under the money counts.

It is no objection to an award that neither the arbitrators or witnesses were sworn, if the law did not require it, or the parties agreed that they need not be,-nor is it any objection that the umpire was appointed before the arbitrators entered upon the business submitted to them, or that the arbitrators joined with the umpire in making the award

In an action for the recovery of the amount of an award or of an arbitration note, the award cannot be collaterally impeached by showing that the plaintiff procured it by means of false testimony, which was known by him to be so.

ASSUMPSIT.

The first count in the plaintiff's declaration was for money had and received, and the remaining counts were upon an award of arbitrators, but, during the trial, the plaintiff waived the counts upon the award. The defendant plead the general issue, and the case was tried by jury, at the January Term, 1856,—PoLAND, J., presiding.

Upon the trial, the following facts appeared which were not controverted by either party. At the time of the transactions referred to, both the plaintiff and the defendant lived in Hereford, Canada East. In December, 1848, a controversy arose between them which they mutually agreed to submit to Hugh Kennedy and Daniel Sherman. After they had assembled for the purpose of having the hearing before said arbitrators, a written submission was made and signed by the parties, dated the 12th of Septemher, 1848, and delivered to the arbitrators. At the same time the plaintiff and the defendant each executed a note for the sum of twenty-five dollars, payable to the other, and these notes were delivered to said arbitrators with directions to keep them till the award was made, and then to deliver both notes to the party in whose favor the award should be; and if the amount awarded against the losing party should not be as much as said note, then the arbitrators were

Woodrow v. O'Conner.

to endorse said note down to the amount of the award. It was at the same time agreed by the parties, that the arbitrators were to reduce all the testimony before them to writing, and, in case they could not agree as to the decision of said matter, they were to submit such written evidence to Joseph Lougee, Esq., a magistrate, and he was to act as umpire with said Kennedy and Sherman.

The parties thereupon proceeded to trial before said arbitrators, and, there being no magistrate near, it was agreed that neither the arbitrators or witnessess should be sworn, and they were not. Each party had several witnesses who testified before said arbitrators. The said Kennedy and Sherman did not agree in the award, and accordingly, with the consent of the parties, they submitted the evidence taken in writing by them to said Lougee, and then the said three arbitrators proceeded to make an award in writing, which was in favor of the plaintiff. Shortly after the award was made, the arbitrators met the parties, and read their award to them and delivered it and the two notes to the plaintiff, the defendant making no objection thereto, and the balance of the award against the defendant being for more than $25.00.

It appeared that, by the laws of Canada, where an arbitration is not under a rule of court, the arbitrators and witnesses need not be sworn unless required by one of the parties. The plaintiff claimed to recover the amount of said note; and the defendant did not claim that said note or award had ever been paid; but offered to prove that, upon the trial of said cause before said arbitrators, the plaintiff procured his witnesses to state falsely before said arbitrators, and that upon their evidence the arbitrators found the facts to be as the plaintiff claimed, when the same were false, and so known to be by the plaintiff. The plaintiff objected to this evidence aud the court excluded it, to which the, defendant excepted. The defendant claimed also that, upon the above state of facts, there was no sufficient consideration to sustain said note, but the court ruled otherwise, and directed the jury to return a verdict for the plaintiff for the amount of said note and interest, to which direction the defendant also excepted.

Upon the trial, the defendant objected to the admission of all the papers above referred to, and also to all the parol evidence by which the other facts than those appearing from said papers were proved,