(after stating the facts). The action is for а penalty which the statute gives “to any person suing for
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the same.” The defendant company sets up in bar of the recovery, an agreement entered into between itself and O. P. Middleton, a son of the рlaintiff, who was claiming the penalty, for a reference, and the award madе against the defendant's liability. The evidence in support of this defence was properly ruled out. No interest is acquirеd by any person which can be the subjeсt of compromise or arbitration, until thе •demand for the penalty is asserted by thе institution of suit for its recovery. The reference and arbitration were entirely grаtuitous on the part of O. P. Middleton, and whatever misplaced •confidence his аssuming to act in the controversy may have inspired in the company, that it was with the concurrence of his father, the ownеr, and that the award would be acquiesced in, it •can form no defence to the action by whomsoever brought, for it is not fоr the benefit of the owner of the goods, but wholly puni-tory in its effect. When the suit is commеnced, an interest vests in the plaintiff, contingent upon his success, but no sooner, tо the •exclusion of others. The matter offered in evidence was thereforе wholly irrelevant. Our attention has been directed to the ■question, in whose name the action should be brought, and to the conflicting rulings upon the point made in this Court. The •construction of the §§ 1212 and 1213 of The Code, in
Norman
v. Dunbar,
No error. Affirmed.