The points relied upon by the counsel, and those parts of the record in the former action material to be known, will suf-ficently appear from the following opinion of the court, which was pronounced by
Hutchinson, J.If the facts in this case are comprehended by the court, one Henry H. Lowell died a few years since, leaving his father, Daniel Lowell, living. At a later period, Daniel deceased also, and the defendant, Asa Hanson, was the executor named in the will of Daniel; and he procured the probate of the will, and officiated as executor of the same. It seems that he proceeded to settle the estate of Daniel, not knowing but that Henry died intestate: and, considering Daniel, the father, to be-sole heir to his son Henry, (who died without issue,) let the property of Henry merge with that of Daniel. At a subsequent period, and before the estate of Daniel was wholly settled, it was discovered that Henry, while living, *323made his will, by which he'bequeathed all his property, it being personal estate, to Mrs. Bachelder and Mrs. Rea, the wives of the present plaintiffs, to each an equal portion, The plaintiff, Bachelder, then took a letter of administration of the estate of Henry, (probably with the will annexed,) and claimed, in connexion, with the other plaintiff, Rea, the property of Henry in the hands of the defendant as before mentioned.
Hanson, it appears, did not so fully admit the claim as to pay without contest: and all three agreed to a reference, according to the statute, before the judge of probate. Accordingly., they made their submission in writing, as follows, to wit:
“This memorandum of an agreement, made this 14th day of November, A. D. 1821, by and between Asa Hanson, of Gil-mantown, in the state of New-Hampshire, executor of the last will and testament of Daniel Lowell, late of said Gilmantown, deceased, and Joseph Bachelder, of Danville, and state of Vermont, administrator of the estate of Henry H. Lowell, late of said Gilmantown, deceased, and William Rea, of Burke, have submitted, and do by these presents submit, to the final end;, award and arbitration of William Mattocks, Samuel Sias, and Salma Davis, arbitrators mutually chosen between us, as well in our private as in our representative capacities aforesaid, which award of either two of them is to be final and conclusive between the parties, so the same be made and ready to be delivered to the parties in difference on or before the first day of February next. In testimony whereof we have hereunto, subscribed our hands, the day and year first above written.. Signed William Rea, Joseph Bachelder, Asa Hanson.”
This was presented to the judge of probate, and he, reciting that Hanson, as executor, and Bachelder, as administrator, ha,d mutually agreed to. submit, &c. and saying nothing about Rea’s, having joined in the agreement, approved of the submission, as it related, to the two estates. Afterwards, and within a few days, the parties were together, and had, their hearing before the said referees, who decided upon the premises, and made their report in writing, as follows
“To the Hon. Judge of Probate for the district of Caledonia. -.--The subscribers, appointed arbitrators, as within mentioned, having taken upon ourselves the burden of said submission, and having notified the within nam.ed Asa Hanson, William Rea, and Joseph Bachelder, to appear before us at the office of WiN liam Mattocks, in Danville, on the 22d day of November, A. D. 1821, and the said parties met accordingly, and having duly presented their exhibits, and having been fully heard by us in relation to all subjects of controversj' between them, and it being shown us that the within named Henry H. Lowell, deceased, in his lifetime, bequeathed all his estate, being wholly personal, to Mary Bachelder, wife of said Joseph, and Martha Rea, wife of said William, equally; and it being also sho.wn us, that the property of said Henry has, by. mistake, been merged by said Asa in the property of Daniel Lowell, deceased: we do *324therefore unanimously award and determine, that said Asa Hanson pay to said Bachelder and Rea, on demand, the sum of three hundred and fifty dollars, in full satisfaction of all c]ajms 0f t]ie said Bachelder and Rea, upon the estate of the said Henry, deceased; and that said Bachelder and Rea pay us the sum of four dollars, as our fees. In testimony whereof we have hereunto subscribed our hands, this 29th ...ay of November, A. D. 1821. Wm. Mattocks, Samuel Sias, Salma Davis, arbitrators.”
This report came up for acceptance before the court of probate, and, after several continuances, it was accepted on the 31st day of January, 1822, and became a matter of record in the probate court.
The plaintiffs, considering that these proceedings before the court of probate entitle them to recover of the defendant, Hanson, the sum allowed them by the referees, have brought the present action to recover the same. The plaintiffs have declared in debt, and the first count of their declaration sets forth the facts now recited, and claims the $350 contained in the said report. In stating, however, the acceptance of the report, they have stated it as accepted as relates to the two estates, in the language the judge used in approving the submission.
To this first count the defendant has plead in bar a former recovery, in a suit between the same parties, in which the same demand was brought upon the record, and, as he contends, adjudicated upon, and resulted in a decision in his favour.
The defendant has not incorporated into his plea the record of the former recovery, but has trusted to his averment of the history of the suit and decision therein, and of the identity of the matters litigated.
The plaintiffs, in reply to this, have prayed oyer of the record, and made it a part of their replication; and concluded the same with a general demurrer to the plea in bar, before mentioned, which is the defendant’s third plea.
The defendant has joined in this demurrer.
The plaintiffs’ counsel alluded to one defect in the plea in bar, where it avers the bond to be a part of the same agreement, without saying what agreement; but this is cured by the obvious reference to the agreement described in the plaintiffs’ declaration, and also by the oyer of the record prayed by the plaintiffs.
The defendant, in . carrying the force of the demurrer Iback to the plaintiffs’ declaration, contends, that the award, as he terms it, described in the declaration, is bad, and no recovery can be had upon it; and, secondly, he contends that the former recovery now plead is a sufficient bar.
Some of the objections against the validity of the plaintiffs’ claim, result from its being viewed as the award of arbitrators merely; and it is said an executor or administrator cannot agree to a submission so as to bind the estates they represent; but the weight of authorities is the other way, in case such ex*325ecutors or administrators will assume the risk of satisfying the heirs of those estates. But, treating this as a reference under the sanction of the court of probate, there can be no doubt of the power of Hanson, as executor, and Bachelder as administrator, to put an end to their controversies in this way. The statute then in force, like the late statute, contains an express provision for such a procedure, and says that such a report,, accepted by the court of probate, shall be final between the ■ parties.
But it is suggested, that Rea, who joined in the reference, acted as individual and in the right of his wife, though not so described; and further, that the report was broader than the submission that was approved by the probate court. These suggestions, at the present state- of the proceedings, appear rather more technical than substantial. It is true, no person could have maintained an action against Hanson as executor of Daniel Lowell, but Bachelder, who was administrator of Henry, and he must have sued in his representative capacity. If suits might otherwise have been brought, still Bachelder and Rea could not have joined, but each must have sued for his half the money; nor could either have sued as an individual, without joining his wife, in whose right he claimed. But, had the defendant paid the money over without objection, Bachelder could have discharged his half, and Rea could have discharged his half — -or Bachelder, as administrator, could have discharged the whole, and Rea and wife could have called upon him for their moiety.
The defendant, however, was disposed in some sense to litigate the question; no more, probably, than would be for his safety as respected the rights of the heirs of his testator, Daniel Lowell, as we should judge from the amicable mode adopted to settle the question. They all, that is, they who ought to receive the money in separate moities, and he who ought to pay the same, made and signed a submission of the question to the three men therein named; and, by the terms of the written submission, include all individual, as well as representative claims and rights. This being thus made and signed by and between all parties in interest, is itself a waiver qf all the objections which might have been well raised in the ordinary course of judicial proceedings.
But the probate judge certifies his approbation of the submission so far as relates to the two estates, and says nothing about the submission of Rea. Possibly he intended to be technical, and include nothing which should not in form regard the two estates, and be presented by the executor and administrator. If so, that might have formed an objection to the acceptance of the report, when it was returned in favour of Bachelder and Rea. — But it seems the report, thus returned, was accepted. Hence it is probable that the particularity of expression in approving the submission, was intended to exclude such individual claims as might be within the terms of the written submis-*326S^0B’ and yet have no relation to the two estates in con trover-sy. Upon this construction, as the report was specifick, and showed itself to contain nothing but the money due from the defendant to Bachelder and Rea, in the rights before named, there could be no solid objection to the acceptance of the report; it was in favour of those in interest, and who were in fact parties to the submission, and, by becoming so, had estop-ped themselves from complaining afterwards, let the decision be for or against them. But the report was accepted, and no appeal was taken to the Supreme Court; and it is now too late to urge against the claim, that, merely, which might ba.ve been proper to urge in objection to the acceptance of the report. The records in the probate office, since the acceptance of the report, (the time allowed for taking an appeal having expired with no appeal taken,) furnish sufficient evidence to entitle the plaintiffs to recover the sum allowed by the said referees, in their report, thus sanctioned by the acceptance of the probate court.
The observation made upon the terms used in approving the submission, apply equally to the mode of declaring adopted by the plaintiffs in the present case, in alleging an acceptance so far as relates to the two estates. This may sound like a partial acceptance; but, on inspection of the report, it plainly contains nothing but what does relate to the two estates, as before explained.
The next question to be considered, is, whether, the plaintiffs are barred by the recovery exhibited in the defendant’s third-plea in bar ?
The general principle that should govern upon this point, is, that wherever the same question is raised and decided in the former action which is presented in this, the former recovery is a bar — otherwise not; and, when, the same evidence will support both actions, they are considered as brought for the same cause. The actions must be of the same kind, that is, they must be of a kind that admit the same testimony. One must not be of a higher grade that requires different testimony. And where a man has his election to bring trover for goods, or assumpsit for the money raised by a sale of the goods, and brings either of those actions, a recovery upon the merits by either party will bar the other action.- — See the authorities cited by the defendant, and especially 2 H. Blac. Rep. 827, Nitchin vs. Campbell.
In referring to the recovery plead, it appears the action brought by the plaintiffs against the defendant, was brought upon a bond in the penal sum of $500, conditioned as follows:
“The condition of the above obligation is such, that if the above bounden Asa Hanson shall well and truly stand to, abide, keep, perform, and fulfil the arbitrament, final award and determination of Wm. Mattocks, Samuel Sias and Salma Davis, or any two of them, of and concerning all claims by said Joseph and William, in their private capacity, or by said Joseph, as *327administrator of Iíenry H. Lowell, against said Asa, in his private capacity, or as executor of Daniel Lowell, and of and concerning all claims by said Asa, in his private capacity, or as executor as aforesaid, against said Joseph and William, in their private capacities, or against said Joseph, as administrator aforesaid, so as said award be made in writing, and ready to be delivered to the parties in difference, on or before the first day of February next- — then this obligation to be void; otherwise to remain in full force and virtue. Asa Hanson. (l. s.)”
This bond was dated the same day as the submission in the present action, to wit, November 14th, 18-21. This bond being spread upon the record in that action, the defendant plead in bar that there was no award made. The plaintiffs replied, setting forth in haec verba the same writing, or award, or report set forth in the plaintiffs’ declaration in the present case, and averring notice of the same to the defendant, and non-payment of the sum awarded; but not setting forth any submission except the bond itself, nor making any mention of any report to the judge of probate, or any approbation or acceptance of the report in that office.
To this replication the defendant rejoined, setting forth, in ‘haec verba, the written submission alluded to by the plaintiffs in their present declaration, and the report to the judge of probate, of the decision of said referees or arbitrators : also alleging that the said submission was presented to the judge of probate, and that he approved the same, and afterwards accepted the report, just as the plaintiffs have now set forth in their present declaration.
To this rejoinder the plaintiffs demurred, and the defendant joined in demurrer; and the Supreme Court, before which said action was then regularly pending, decided that said rejoinder was sufficient, and rendered judgment for the defendant to recover his costs.
In order for this recovery thus plead to be holden as a bar to tlie present action of the plaintiffs, the Court must decide that the validity of the same claim now in suit, was so before the Court in the former trial, as to have been adjudicated upon with regard to its merits. A decision upon any interlocatory question, aside from the merits, has no such effect to bar the claim.
It is not easy to conceive, after what is now suggested, that this claim was adjudged to be invalid in and of itself. — -We should not conceive this but in the absence of other plausible grounds for such a decision as was there made.
It now becomes important to ascertain what the question was in that action ? It will be recollected that the action was brought upon a bond conditioned for the performance of an award of the men named as arbitrators. The main question for decision must have been, whether the award, placed upon the record by the pleadings, was made pursuant to the submission recited in the condition of the bond, upon which the action was brought. If it were not so made, or were in any legal *328sense vai’iant from that which was required by the condition of the bond, it might be perfectly good and valid in itself, and a good foundation for a proper separate action, and yet would be ,0f no avail to support the action upon the bond. Now it is plain that the bond contemplated an award of arbitrators strictly speakings an award evidenced by nothing of a higher nature -than other written awards; an award to be met by the nice-objections of -variance between the submission and award, ofits containing matters not submitted, or not making an end of the controversy between the parties 5 all which objections might as well be raised when the action is upon the bond, as when it is upon -the award itself. .And it is as evident that that 'which was there 'urged as an award within the condition of the bond, was improperly called an award.- — It was a decision of ¡referees under the sanction of the court -of probate, upon a submission'to referees made before the same court, pursuant to the ■provisions of the statute. This decision or report had been accepted by the ¡court of probate, by which, and by force of the statute, it had become conclusive between the parties, and was no further liable 'to such objections as might have been made to its acceptance, nor to those to which common awards ore liable. Arbitrators derive their authority solely from the act of the parties; such -arbitrators were contemplated in the bond. These referees, though designated by the act of the parties, derived their authority from the probate court, and their doings "were of no avail till sanctioned by such court.
Wm. Mattocks and I. Fletcher, for the plaintiffs. E. Paddock and S. Cushman, for the defendant.It is not improbable that the parties, when they executed the' bond, supposed it so framed as to cover the case that has arisen; but the mistake of the parties cannot alter the law. The Court are not called upon to decide what would have been the result, had the condition of the bond described a reference before the court of probate, instead of a submission to arbitrators. In such case the variance would have been avoided; yet the subject ¡matter of :the suit upon the bond would seem merged in the ■claim of a higher nature, and more out of the reach of contest, ¡apparent upon the probate records.
These must be considered the grounds on which the Court •did. or well might decide the suit upon the bond in favour of the defendant; and they are grounds which wholly exclude the merits of ¡the claim brought before the Court in the present action.
The only result from the view now presented, is, that the plea in bar predicated upon a former recovery, is insufficient to bar the plaintiffs.
Judgment for the plaintiffs.