that does not prove the publication by the defendant of a newspaper printed in Union Buildings, John Street. [Follett, in support of the rule, mentioned Rex v. Donnison (a).] That was merely a question whether the statute dispensed with proof of publication by the defendants, on motion for a criminal information, where paper was sufficiently described in the Stamp Office affidavit. the Sir James Scarlett and Follett, contrà. The title of the papers produced corresponds with that in the Stamp Office affidavit: the printer is not to evade the statute by printing in a place different from that which he has pointed out in his own affidavit. Lord DENMAN C. J. This rule must be discharged. If the paper be not printed in the place described in the Stamp Office affidavit, the act gives an easy proceeding against the party (b). We must give effect to express enactments of the statute. the TAUNTON J. Fault has been found with the statute, as going a great length in supplying presumption of publication and printing: we cannot carry it further. WILLIAMS J. concurred. (a) 4 B. & Ad. 698. (b) Section 2. requires an affidavit with "the true description of the house or building wherein any such paper is intended to be printed ;" section 4. requires a fresh affidavit on changing the printing-house, place, &c.; section 7. imposes a penalty of 100l. for publishing without the proper affidavits having been sworn" as often as by this act is required;" section 10. requires that the paper shall contain the description of the place of printing, under a penalty of 1007.; and section 29. prescribes the mode of recovering penalties, by action or information. 1834. The KING against FRANCEYS. 1834. The KING against FRANCEYS. The counsel for the prosecution then applied to have the rule enlarged (a), in order that supplemental affidavits might be filed, alleging that the two places were identical; and they referred to Rex v. Featherstone (b). Per Curiam. In a proceeding of this sort, parties should come prepared. The Court would be setting a dangerous precedent, if they allowed the course proposed. Rule discharged. (a) The rule had previously been twice enlarged, but not for the purpose of supplying deficient proof; and it did not distinctly appear at whose request this had been done. (b) Cited in Rex v. Donnison, 4 B. & Ad. 699. Monday, On a motion for an attachment for not performing an award, the Court will not discuss objections to the award, not MACARTHUR against CAMPBELl. ASSUMPSIT. Plea, the general issue. On the 18th June 1832, by an order of Lord Tenterden the cause, and all matters in difference between the parties, were referred to an arbitrator; the costs of the suit and of the reference to abide the event of the award. apparent on the The order was made a rule of court, 19th April 1833. The arbitrator awarded, 12th November 1832, "that there is not any sum or sums of money due and owing from the said H. D. Campbell to the said John M'Arthur; nor did the said H. D. Campbell undertake or promise face of it; as, that the arbitrator was partial, or that matters were brought before him (the reference being of all matters in difference) which are not disposed of by the award. in manner, &c." The costs of the cause and reference were taxed at 1047. 10s. In Easter term 1833, the plaintiff obtained a rule to set the award aside, which was discharged in Michaelmas term 1833 (a), on account (a) See Macarthur v. Campbell, 5 B. & Ad. 518. of of the lateness of the application. In Easter term last, Miller obtained a rule to shew cause why an attachment should not issue against the plaintiff for not paying the costs. The affidavits in opposition stated that the defendant made a claim of set-off before the arbitrator, of which the award had taken no notice. The set-off had not been pleaded, nor notice given of it, in the original action. The sum claimed by the plaintiff was 8l. 17s.; the sum claimed in the set-off was 207. 11s. 1d. The affidavits also contained statements imputing partiality to the arbitrator. Follett and W. H. Watson now shewed cause. If the arbitrator had found for the plaintiff, it would have appeared that he had arbitrated on all submitted to him: so if the arbitrator had awarded general releases, Wharton v. King (a). But the present award is not final; for the set-off may be still the subject of a future action against the plaintiff; and, if the award were pleaded in bar to such action, it would be a good replication, that the award did not dispose of all matters in differThe objection to the award, as not being final, might have been pleaded to an action brought upon it, as was allowed in Cargey v. Aitchison (b), in conformity with Mitchell v. Staveley (c); it ought, therefore, to be held a sufficient answer to an application for an attachment, In re Cargey (d). On the former motion in this case (e), the Court considered the application to set aside the award to be too late, although Musselbrook ence. (a) 2 B. & Ad. 528. (b) 2 B. & C. 170. S.C. affirmed in error, in Exch. ch. 2 Bing. 199. (e) Macarthur v. Campbell, 5 B. & Ad. 518. 1834. MACARTHUR against CAMPBELL. 1834. MACARTHUR against CAMPBELL. v. Dunkin (a) appears to be an authority to the contrary but this does not shew that the objection may not be insisted upon in opposing an application for an attachment, which is not a strict matter of right, but a proceeding in the discretion of the Court; and the present is, at any rate, a case of sufficient doubt to induce the Court to withhold the summary remedy. With respect to the objection of partiality, it perhaps could not be regularly pleaded in answer to an action; but the want of finality makes the award altogether void. If the order of reference had specifically noticed the set-off, there can be no doubt, on the authority of Randall v. Randall (b), that the attachment would have been refused. In Winter v. Munton (c), the objection, that matters in difference were not noticed, was raised by affidavit; though it is true that that was on motion to set the award aside. Sir J. Scarlett and Miller, contrà. It is not contended that the award is bad upon the face of it, or even doubtful; and if any objection, not appearing on the face of the award, be raised, that must be done by motion to set aside the award; otherwise a party, against whom an award was made, might easily evade it, by neglecting to make any objection within the time for setting it aside, and then filing affidavits in answer to the motion for an attachment, which could not be answered. Neither ought it to be assumed that the defendant could sue on the matters included in the set-off: it might be shewn in answer that the set-off was before the arbitrator, in the same way as it may be shewn that a set-off (a) 9 Bing. 605. (c) 2 B. Moore, 723. (b) 7 East, 81. was was brought before a jury, by plea or notice, and that the jury nevertheless found for the plaintiff. Lord DENMAN C. J. It is said in 1 Tidd's Practice (a), "The Courts will not set aside an award, though for defects appearing on the face of it, after the expiration of the time limited by the statute (b); and a party cannot, in shewing cause against an attachment, impeach the award for any intrinsic" (where we should read extrinsic) "matter. But, upon an application for an attachment for non-performance of an award, it is competent to the parties to object to the award for any illegality apparent on the face of it, although the time limited by the statute for applying to the Court to set aside the award, is expired: the reason is, that upon a motion for an attachment, the party would be without remedy, if the attachment were granted, notwithstanding the illegality of the award; whereas, if the party were left to his remedy, by bringing his action on the award, it would be competent to the defendant to take advantage of any illegality appearing on the face of it." Numerous cases, which are referred to in Tidd (c), establish the principle, that an objection upon the face of the award may always be taken advantage of; but that objections arising dehors must be made within the limited time. In the case which was before us a twelvemonth ago (d), the Court decided that they would not allow an award to be set aside after the statutory time; and it would be too much to allow a longer time (a) Chap. 36, p. 845. 9th edit. 1828. (b) 9 & 10 W. 3. c. 15. s. 2. (c) See also Manser v. Heaver, 3 B. & Ad. 295. (d) Macarthur v. Campbell, 5 B. & Ad. 518. E 4 for 1834. MACARTHUR against CAMPBELL. |