By the Court,
Sutherland, J.The defendant failed in maintaining the issue, that the note on which the suit was brought,, was given for a partnership transaction between Judd, Harris and Wilson, and that it was embraced in the submission of the partnership concerns to arbitrators, and disposed of by their award. There is no evidence as to the *514consideration for which the note was given ; and if it was not given for a debt growing out of the partnership of these individuals, it was not embraced in the submission. The testimony of the arbitrators shows conclusively that it was not in fact presented to, or passed on by them. The judge, therefore, was correct in deciding that the action was not barred, by that award.
Bul I think he erred in submitting it to the jury, to determine upon the evidence before them, whether the note had not been paid or satisfied, by some arrangement between (he parties previous to the arbitration. There was no evidence from which any such conclusion could legitimately be drawn. The parties had put themselves upon an entirely different issue. The defendant did not pretend that the note had been paid or satisfied in any other manner, than by (he general settlement of the partnership concerns by the arbitrators. He did not attempt to prove any fact or circumstance from which such payment could be inferred ; and none such exist in the case, except that no mention was made of the note, nor any allusion to it at the time of the submission to/or hearing before the arbitrators. But if I be note was not a partnership concern, it bad no connection with the matters submitted, and no reason for mentioning it existed. Further evidence as to the consideration of this note must be in the power of the parties. At all events, upon this case there is no evidence of it ever having been paid or discharged.
New trial granted: costs to abide the event.