
    Enoch Woodbridge, Appellant; against Apollos Austin, Appellee.
    When a demand by the existing laws of a foreign country, where the contract was made, it cannot be revived by transferring it to an inhabitant of this State.
    
    CASE on a promissory note, endorsee against promisor, with plea of set-off.
    The plaintiff declared upon a promissory note, dated at Quebec, November 1, 1790, made by the defendant to Thomas Aylwin, or order, for the sum of 251l. 11s. 9d. Halifax currency, payable on the 13th of June following. That since the decease of Aylwin, to wit, on the 22d day of February, 1793, the contents being, then due and unpaid, John William Woolsey, curator on the estate of Aylwin, appointed and authorized by the laws of the British Province of Lower Canada, for a valuable consideration by his endorsement under his hand made, ordered the contents to be paid to the plaintiff, of which the defendant had notice, See. and therefore, &c.
    Writ dated 17th of February, 1794.
    To this declaration the defendant pleaded the general issue, (which was joined by the plaintiff,) and filed a declaration in set-off, protesting that the note above declared upon was and is the property of John W. Woolsey, in his capacity of curator on the estate of Thomas Aylwin, and that J. W. Woolsey endorsed the same to the plaintiff in trust to be collected for the use and benefit, of Aylwin's estate; and then declares, that Thomas Aylwin, in his life-time, to wit, on the 14th of November, 1789, at Quebec, in the British Province of Lower Canada, made his certain promissory note of that date to Simeon Frazer and John Young, merchants, trading in company under the name and firm of Frazer & Young, by which he promised to pay them or order, 400l. Halifax currency, with interest, on the first day of June then next following. That on the 14th of November, 1789, the contents of the same note being fully due and unpaid, the said Frazer & Young, for a valuable consideration, by their certain endorsement on the same note in their hand-writing by one of the said copartners in the name of said firm made, ordered the contents to be paid to the defendant, of which the said Aylwin in his life-time had due notice, and likewise the said J. W. Woolsey, in his capacity of curator as aforesaid, since the said Aylwin’s decease. Then raises the liability and consequent promise in the usual form, and prays that the contents of the same note may be set off against the plaintiff’s demand.
    Where a promissory note is not negotiated by the custom of merchants, the endorsee’s interest in the note must be made to appear, and the particular power of the endorsor must be shown.
    To this declaration in set-off, the plaintiff pleaded non assumpsit, with a counter protestando, and issue joined,
    It was conceded by the defendant, that he made the note declared upon; but he called upon the plaintiff to show that his endorsor was curator to the estate of Aylwin the intestate, and as such had a legal right to endorse the note declared upon.
    
      Et per Curiam. This is not a common endorsement by the custom of merchants. The endorsee’s interest in the note must be shown to entitle him to a recovery, and this cannot be shown but by showing an interest in it, and a right to transfer such interest in the endorsor. The declaration alleges no interest which Woolsey had in the note, excepting what is derived to him by operation of law, as curator or administrator of the payee’s estate. It is incumbent on tire plaintiff to show that J. W. Woolsey was curator at the time of the endorsement, and as such that he had power to endorse promissory notes made to his intestate as incident to his trust.
    Exemplifications of the record of judicial proceedings in a foreign country, must beconsidered as prima facie correct; if incorrect, the onus probandi lies on the opposite party.
    The plaintiff now exhibited a copy of the proceedings of two of the Judges of the Court of Common Pleas of the Province of Lower Canada, certified by the Clerk of the Court,, by which it appeared, that J. W. Woolsey had been elected by the heirs of Aylwin, and duly appointed curator to his estate.
    The defendant’s counsel took several exceptions to the record.
    
      Sed per Curiam. Exemplifications of the record of judicial proceedings m a foreign country, must be considered prima facie as correct; if incorrect, the onus probandi lies on the opposite party. Let the copy be read.
    The defendant’s counsel now insisted, that it was incumbent on the plaintiff to show the law of the Province of Lower Canada, upon which the certified proceedings were founded.
    The plaintiff replied, that the proceedings were bottomed on the common law or ancient usage of the country, and being the lex non scripta could not be produced.
    
      When a questionarises, what is a foreign law ? if a written law it must be produced; if an unwritten law is must be provided by the testimony of disinterested and intelligent witnesses.
    
      Sed per Curiam. When the question arises, what is a foreign law ? if a written law it must be produced; if an unwritten law, it must be proved, like any other fact, by the testimony of disinterested and
    intelligent witnesses. Of this opinion was Lord Mansfield, as delivered in the case of Mostyn v. Fabrigas, Comper's Reports, p. 174. “ The way knowing foreign laws is, by admitting them to be proved as facts, and the Court must assist the Jury in ascertaining what the law is.”
    The defendant now went to prove his in set-off.
    The plaintiff conceded the making of the note by the intestate Aylwin to Frazer & Young, and also their endorsement to the defendant,
    But showed by certified copies, That Thomas Aylwin died in the year 1791. That J. W. Woolsey was the same year appointed curator on his estate, and immediately represented the estate insolvent. That the estate paid eleven shillings and nine-pence on the pound. That Frazer & Young exhibited their claim, the nature of which the records do not show, to the amount of 460l. 19s. 3d. Halfax currency, and on the 22d of January, 1793, received a dividend of three shillings and nine-pence on the pound; and on the 12th of April, 1799, a further dividend of eight shillings on the pound; when the estate was settled, and the note declared upon by the plaintiff, with another note made to the intestate for 40l. Halifax currency, were vended at public auction, and, purchased by the endorsor, J. W. Woolsey, in his individual capacity.
    The plaintiff now insisted that the defendant’s demand on the note, declared upon the set-off, was absolutely barred by the operation of the ex loci; that Aylwin’s note to Frazer & Young, was included in their claim against the estate of 460l. 19s. 3d. upon which they had received two several dividends. If it was not included, as the firm was subject to the laws of the Province of Lower Canada, and the co-partners therein resident during the whole period of the settlement of the intestate’s estate, if they omitted to profert their claim, it is for ever barred, and cannot be revived by endorsing the promissory note, which is the mere evidence of such claim to an inhabitant of this State.
   Per Curiam.

The Court are clearly of opinion, that when a demand is barred by the existing laws of a foreign country, where the contract was made, it cannot be revived by transferring it to an inhabitant of this State. But there are several obvious difficulties which present against the several demands of either party, which can only be removed by a knowledge of the existing laws, and their practical operation in the Province of Lower Canada. Either party may have his election to continue the cause until the next term, that in the interim satisfactory evidence of the laws of that Province may be obtained. The jurisprudence of the Province of Lower Canada is highly respectable; and no doubt can be entertained, from the eminent and learned professional characters who have adorned its Supreme Bench since the English conquest, and more especially since the establishment of its government by the act of the British parliament in 1791, that the operation of the provincial laws is clearly ascertained in all important cases by judicial decision.

Josias Smith, Samuel Miller, and Amos Marsh, for plaintiff.

Nathaniel Chipman, Daniel Chipman, and W. C, Harrington, for defendant.

The plaintiff now moved to enter a nonsuit, which was not opposed by the adverse party.

Plaintiff nonsuited.  