among them respecting the partnership affairs, and a Chancery suit had been commenced, they agreed to refer their said differences, and the subject-matter of the suit, to Joseph King and Harmood Banner, accountants, with power to them to choose an umpire. The deed contained this clause :-"And it is hereby further declared and agreed, that the present reference or submission shall or may be made a rule of his Majesty's Court of King's Bench at Westminster, on the application of any of the parties hereto, his or their heirs, &c.; and that no action or suit at law or in equity shall be commenced or prosecuted against the said *arbitrators and umpire, or any of them, concerning their or [*357 his award or determination after the same shall have been so made as aforesaid, nor to impeach the said award or umpirage, unless some collusion or other fraud be discovered or appear therein."

The arbitrators, and an umpire chosen by them (a merchant,) made their award concerning the several premises, and thereby adjudged, reciting the submission, among other things, as follows:-"We find and award that there are due to the co-partnership of Mackay, West, and Co., from W. A. West and T. Holt, severally, as partners therein, the sums following (viz. 36287. from West, and 12587. from Holt): and we order and award that the said W. A. West and T. Holt do severally pay the respective sums of money so found due from them, with interest thereon from the date hereof at the rate of 4 per cent. per annum, into the hands of the said Joseph King (the arbitrator), at his office in, &c., aforesaid, on the 10th of October next, between twelve and one in the afternoon, to be applied in manner hereinafter directed." And they afterwards awarded and directed, "That the said J. King shall apply the said several sums of money so to be paid to him by the said W. A. West and T. Holt, according to our award aforesaid, in liquidation, so far as the same will extend, of the debts due by the said firm, and mentioned in the schedule hereunder written." There was annexed to the award a schedule of names of creditors, with sums opposite to their names, amounting in the whole to 65627. The arbitrators also awarded, in like manner, that certain sums (viz. 737. and 997.) were due to the firm of Thomas West and Co. from J. U. West and W. A. West respectively, and directed those parties to pay the said sums to the said Joseph King [*358 (the arbitrator) at his office, between twelve and one on the 11th of October, to be applied as after mentioned. They further found, that certain sums (viz. 1157. and 577.) were due from the last-mentioned partnership to Mackay and Holt, respectively; and they directed that King should apply the sums to be paid by J. U. West and W. A. West, as last aforesaid, in satisfaction of the moneys so found to be due to Mackay and Holt, "but subject to all equities between the said parties as partners in the said two several firms." The submission was made a rule of court.

A rule was obtained in this term, calling on all the parties to the submission, except W. A. West, to shew cause why the said award should not be set aside, upon several objections, which it is not necessary to state particularly; but the grounds of which were, that the award was uncertain, and not final, and that the arbitrators had exceeded their authority. The fifth objection was, that large sums of money were awarded to be paid to one of the arbitrators without any authority for that purpose in the submission, and without any security for his application of them. Mackay, Holt, and J. U. West made affidavits in opposition to the rule, stating, among other things, that they were satisfied with the award; and now

Sir J. Campbell, Attorney-General, Cresswell, and Tomlinson, shewed cause. In the first place, the present motion, even if well founded, is contrary to the agreement of the parties in the deed of submission. The substance of that agreement is, that the parties shall be finally bound by the award, unless fraud or collusion *be discovered. They are concluded by this award, in point [*359 of fact, as parties are, in point of law, upon reference to a barrister and award made by him. The Court will not, in either case, review the decision.

No misconduct is charged. As to the fifth objection, (a) if the suit had proceeded in Chancery, the court of equity would have appointed a receiver, and the arbitrators here have done no more. The money is not to be received by King for his own benefit. An award, that money be paid to a stranger, is good, where it appears to be for the benefit of the parties; Com. Dig. Arbitrament, E. 7; and this Court so decided in Snook v. Hellyer, 2 Chitt. Rep. 43.

Sir James Scarlett, and F. Pollock, contrà. As to the precluding clause, it is one commonly introduced in submission to arbitration, and cannot have the effect contended for. Supposing that parties could legally agree not to take advantage of the law to set aside a bad award, they cannot by such agreement take away the statutory jurisdiction of the Court over awards of this desciption. If one party to the submission procures the award to be set aside, contrary to his undertaking, the remedy for the others is by action. Till lately, (3 & 4 W. 4, c. 42, s. 39,) a party might revoke his submission, though an action lay against him on an arbitration bond for so doing. As to the fifth objection, it is said, that a court of equity would appoint a receiver; but that court would, after such appointment, have jurisdiction over the receiver. No jurisdiction is retained in this case over the arbitrator who is to receive the *360] *money; no security can be taken from him, and no attachment can issue against him if he omits to pay the money over. The arbitrators had no authority to order that he should apply the sums paid to him. The parties to this reference have no indemnity against the claims of the creditors for those sums which King is ordered to pay. And the payments by him to Mackay and Holt are to be "subject to all equities between the said parties, as partners in the said two several firms;" which equities the award has left quite unsettled.(b)

Lord DENMAN, C. J. The objection that payments are ordered to be made to an arbitrator over whom there can be no control afterwards, and that they are left in part subject to the equities which have been referred to, is fatal. The clause introduced in the arbitration bond to prevent impeaching the award, is confined to actions and suits, and does not apply to this mode of disputing it. Having, therefore, jurisdiction, and finding these defects in the award, we must order it be set aside.

TAUNTON, J. concurred.

PATTESON, J. The objection, that payment is ordered to be made to the arbitrator, extends to the whole award and is fatal.(c)

Rule absolute.

*361] *SMITH, qui tam, &c. against GILLETT. Tuesday, Nov. 25.

SAMEi qui tam, &c. against SAME.

The stat. 44 G. 3, c. 98, s. 10, which forbids the bringing of actions for any penalty incurred by virtue of that or any other act relating to the stamp duties, unless in the name of the Attorney-General, &c., applies only to cases where the enactment proceeded upon relates to those duties.

Not, therefore, to an action on 38 G. 3, c. 78, sects. 7 and 10, for publishing a newspaper without having delivered a proper affidavit at the Stamp Office and without stating in such paper the true names and additions of the printer and publisher. (But see, now, stat. 5 & 6 W. 4, c. 2.)

THESE were actions of debt against the printer and publisher of a newspaper, for penalties under stat. 38 G. 3, c. 78. The declaration in the first action

(a) The argument as to the other objections is omitted. (b) This refers to a part of the argument not reported. (c) Williams, J., was in the bail court.

was under sect. 10, for printing and publishing such paper not containing the true and real name and names, addition and additions, of the printer and publisher. The declaration in the second action (containing 104 counts for as many penalties (was on sects. 4 and 7, for printing and publishing a newspaper without having signed, sworn, and delivered at the Stamp Office an affidavit as required by the act, upon changing the defendant's place of abode and print. ing-house. A rule nisi was obtained in this term for setting aside the proceedings, on the ground that the party in whose name these actions were commenced (being the clerk of the attorney who appeared for the plaintiff in both) was not the Solicitor or any other officer of his Majesty's Stamp Duties in England or Scotland, nor authorized to sue by the Attorney-General or by the Solicitor of the Stamp Duties, or any officer in that department. The applica tion was grounded on stat. 44 G. 3, c. 98, s. 10.(a)

*Stephen, Serjt., now shewed cause. The tenth section enacts that no [*362 person shall commence any action, for the recovery of any fine, penalty, or forfeiture made or incurred by virtue of this or any other act or acts of par liament relating to his Majesty's stamp duties," unless the same be commenced in the name, &c. The word "relating," if the clause be read with proper stops, connects itself with the word "penalty," not with the words "act or acts of parliament." If the proceedings here had been under 38 G. 3, c. 78, s. 18, which relates to publishing unstamped papers, the clause now relied upon would have been applicable. But the parts of stat. 38 G. 3, c. 78, upon which these actions are brought, are enactments, not for the protection of stamp duties, but for an entirely different purpose. The act generally is not a revenue law; the title states it to be an act for preventing the mischiefs arising from the printing and publishing newspapers, and papers of a like nature, by persons not known; and for regulating the printing and publication of such papers in other respects." There is no reason for supposing it the policy of stat. 44 G. 3, c. 98, to stop private prosecutions in cases like the present.

[*363

Smirke, contrà. The act 38 G. 3, c. 78, connects itself in almost every part with the regulations as to stamp duty. The title is no part of the act: the preamble, indeed, merely states it to be "expedient that regulations should be provided touching publications of the nature hereinafter mentioned;" but some of those regulations (as in sects. 18 and 27,) relate wholly to the subject of stamp duty, and the rest are by no means such as the Stamp Office is unconcerned in. The act 44 G. 3, c. 98, s. 10, was framed with a general view of putting an end to officious informations under statutes of this class; and the enactments of 33 G. 3, c. 78, are not excluded from its operation because some of them have an object collateral to the purposes of revenue. The proposed reading of the tenth section is arbitrary as to the stops and requires several words to be passed over as if not inserted. The opinion of the officers of the stamp duties is in favour of this application. It does not appear that there has been any decision on the point.

(a) Stat. 38 G. 3, c. 78, s. 29, makes the penalties under that act recoverable by a common informer. Stat. 44 G. 3, c. 98, s. 10, enacts, that it shall not be lawful for any person to commence, prosecute, &c., "any action, bill, plaint or information, in any of his Majesty's courts, or before any justice or justices of the peace, or other magistrate or magistrates whatsoever, against any person or persons, for the recovery of any fine, penalty, or forfeiture, made or incurred by virtue of this or any other act or acts of parliament relating to his Majesty's stamp-duties, or any other duties under the management of the commissioners" &c., "for the time being, unless the same be commenced, prosecuted, entered, or filed in the name of his Majesty's Attorney-General, or his Majesty's Advocate for Scotland," &c., "respectively, or in the name of the Solicitor or some other officer of his Majesty's Stamp-Duties in England or Scotland respectively; and if any action, bill, plaint, or information, shall be commenced, prosecuted, entered, or filed, in the name or names of any other person or persons than is or are in that behalf before-mentioned, the same, and every proceeding thereupon had, are herby declared, and the same shall be null and void to all intents and purposes."

Lord DENMAN, C. J. It is not necessary to adopt the mode of reading suggested on behalf of the plaintiff. The question is, whether this be an action brought for the recovery of any penalty incurred by virtue of any act of parlia ment relating to the stamp duties. A statute is certainly not to be called "an act relating to the stamp duties" because it contains some single clause having that relation: but the question is, whether the act is one relating to *364] those duties, with reference to the subject-matter of the particular action. If the statute be foreign to the subject of duties so far as the action is concerned, I think the interposition of the Attorney-General or other officers, mentioned in the tenth section of 44 G. 3, c. 98, is unnecessary. The rule will therefore be discharged.

TAUNTON, J. I think the clause applies only to cases where the subjectmatter of the action relates to the stamp duties. I am sorry we are obliged to decide so, because I believe the policy of the statute would be better answered if prosecutions of this kind were entrusted only to officers of the crown, and not left to officious and often corrupt common informers. PATTESON and WILLIAMS, Js., concurred.

Rule discharged. (a)

*365] *HEATH against BRINDLEY. Tuesday, Nov. 25.

Same against Same.

B. gave a warrant of attorney to H., to confess judgment; and, by the memorandum on the warrant, B. for himself, his executors, and administrators, agreed that it should be lawful for H. to enter up judgment at any time, notwithstanding twelve months or upwards should have elapsed from the date, or B. should be dead, without applying to the Court for leave; and to issue execution on any judgment, notwithstanding twelve months should have elapsed from the signing thereof, or B. should be dead, without scire facias.

B. died in the vacation of Hilary term, 1834, which term commenced more than a year and a day from the date of the warrant. In the same vacation, and before the rules of Hilary term 4 W. 4, came into operation, H. entered up judgment, without leave of the Court or a Judge's order, and took out execution, without scire facias. The Court, at the instance of B.'s administrator, set the warrant, judgment, and execution aside, and ordered the proceeds of the execution to be paid to the administrator, on the ground that, notwithstanding the agreement, judgment could not be entered up after B.'s death. Quære, Whether the distance of time, if that had been the only objection, could be dispensed with by the agreement?

JOSEPH BRINDLEY executed two warrants of attorney, dated respectively 2d of April, 1831, and 18th June, 1831, to enter up judgment for the sums respectively of 40007. and 14207. The memorandum annexed to the former warrant was as follows:-" Memorandum, that the before written warrant of attorney is given for securing from the above named Joseph Brindley to the before named Joseph Heath, his executors, administrators, and assigns, 20007., with interest for the same at and after the rate of 57. per annum; and the said J. B., for himself, his executors, and administrators, hereby agrees that it shall and may be lawful to and for the said J. B., his executors, &c., to enter up judgment on the same warrant of attorney, at any time he may think proper, notwithstanding the space of twelve calendar months or upwards may have elapsed from the day of the date thereof, or the said J. B. may be dead at the time of entering up such judgment, without first applying to the Court of King's

(a) See stat. 5 & 6 W. 4, c. 2. By s. 6, of that act, no action or information is to be commenced, prosecuted, entered, or filed for any penalty, &c., incurred under stat. 38 G. 3, c. 78, unless in the name of the Attorney or Solicitor General, his Majesty's Advocate for Scotland, the Solicitor of Stamps and Taxes, or some other officer of stamp duties in England or Scotland respectively.

Bench for liberty so to do; and the said J. B. further agrees, that it shall and may be lawful to and for the said J. H., his executors, &c., to issue execution on any judgment which shall be so *entered up, notwithstanding twelve [*366 calendar months may have elapsed since the signing thereof, or the said J. B. may be then dead, without first reviving such judgment by writ of scire facias or otherwise; and the said J. B., for himself, his heirs, executors, and administrators, hereby agrees that he shall be barred and precluded from commencing or prosecuting any action, suit, or proceeding either at law or in equity, or using any means whatsoever to defeat, reverse, or set aside any judgment which shall be so entered up, or delay or impede execution from issuing thereon as aforesaid; and, if any such attempt shall be made, it shall and may be lawful to and for the said J. H., his executors, &c., to plead and set up these presents in bar thereto, any law, usage, or practice to the contrary thereof in any wise notwithstanding." The memorandum annexed to the other warrant was the same as the above, mutatis mutandis, for securing 7107. with interest.

Joseph Brindley died on the night between the 8th and ninth of February 1834, intestate and insolvent. On the 11th of February, judgments were signed on these two warrants, without any rule of court, or order of a Judge, or affidavit; and writs of fieri facias issued thereon, under which the sheriff seized the goods of the intestate. Afterwards, administration was taken out by two creditors. In Trinity term last, F. Pollock, on behalf of the administrators, obtained a rule to shew cause why the warrants of attorney, and the judgments signed, and all subsequent proceedings had thereon, should not be set aside, and the proceeds of the executions restored to the administrators. In the same term, June 12th,

Sir James Scarlett and R. V. Richards shewed cause. (a) The plain[*367 tiff was entitled to enter up these judgments, for the memorandum expressly renounces the usual limitations, both as to the time of the entering up of the judgments, and as to the life of the defendant. In Morris v. Jones, 3 D. & R. 603, S. Ć. 2 B. & C. 242, it was held that, where the parties agreed that execution might issue after a year and a day from the signing of the warrant, without a scire facias, it might so issue, notwithstanding the statute of Westminster 2, 13 Edw. 1, st. 1, c. 45. So far, therefore, as regards the length of time, application to the court is rendered unnecessary by the effect of the renunciation. And, besides, no one but the defendant himself can take the objection Jones v. Jones, 1 D. & R. 558. As to the death of the party, he was alive on the first day of Hilary term; and as the case is antecedent to the operation of the rule Hil. 4 W. 4, General Rules and Regulations, 3, 5 B. & Ad. ii., the judgment relates to that day, Bragner v. Langmead, 7 T. R. 20, Calvert v. Tomlin, 5 Bing. 1. If the motion had been made in court (instead of that form being dispensed with by the memorandum), the rule would have been obtained for entering up the judgment as of the first day of Hilary term. But the express renunciation is also sufficient to answer this objection.

F. Pollock, contrà. Calvert v. Tomlin, 5 Bing. 1, was a cause on a cognovit and Gaselee, J. expressly distinguishes it from the case of a warrant of attorney, saying, that, *" when judgment is entered up on a warrant of attorney, it must be shewn that the party is living; because, if the court knew [*368 him to be dead, they will not allow judgment to be signed." That is the prac tice; and there is good reason for adhering strictly to it, considering the prejudice that might otherwise accrue to creditors. [LITTLEDALE, J. referred to Robinson v. Tonge, 3 P. Wms. 399, and Parsons v. Gill, 1 Ld. Raym. 695, S. C. Comyns's Rep. 117; note to Springer v. Sommerville, Bunbury, 272; and note (c) to Bragner v. Langmead, 7 T. R. 21.] Cur, adv. vult. Lord DENMAN, C. J., on this day delivered the judgment of the Court. This was a motion to set aside a judgment entered up on a warrant of attorney. Two

(a) Before Lord Denman, C. J., Littledale, Taunton, and Williams, Js.