I am of opinion, that the authorities dearly establish the position, that an administrator can submit a claim of the deceased, whom he represents, to arbitration $ and that he, can, in that capacity, maintain ⅞ suit on the award.
Though there has been some difference of opinion and practice, in different countries, with respect to the power of arbitrators to award costs, where no provision is made in the submission ; yet the practice in this state has been, where the submission was general, and there has been no restriction on their power respecting costs, to consider the arbitrators vested with a discretionary authority to decide whether costs should be allowed, or not. Such a power
*695Tbumbuu, Edmond, BrainARD, Hosmer and Peters, Js. were of the same opinion. Gored J.I have no doubt, that an administrator has power to submit a claim, over which he has the legal controbl. Nor can I perceive, how the present submission is affected,by the statute of Frauds. And as to the plaintiff’s suing in his representative character, I take the rule to be, that an administrator, (not having taken a new written security to himself,) may always sue in that manner, if the money sued for, will, when recovered, be assets in his hands : as, in this case, it clearly will be.
There seems to me, then, to be no difficulty, in supporting the direction to the jury, except in regard to the costs of the arbitration. And if I was satisfied, that the awarding of costs, in cases, in which the submission contains no express authority, for that purpose, was sanctioned by any such genera!, arid long established usage, as could be deemed authoritative ; I would cheerfully acquiesce in it. For I think, that such a rule might be attended with convenience; and if it were established, parties submitting would be apprized of it beforehand, and, if the submission were silent, as to costs, would be presumed to have made their submission, with reference to it. But I am not aware, that there is any such general usage, where no power to award costs is given, by the terms of the submission : and upon strict original principles, arbitrators have no authority, except what is delegated to them, by the parties. Now, what was the authority, conferred upon the arbitrators, by this submission ⅛ An authority to award, only, upon certain claims and con-lroversi.es, or, in the language of the declaration, certain disputes and differences,” subsisting between the parties, at the time of the submission. But the costs, or charges, which might afterwards accrue, on either side, constituted no part of those disputes, or differences, and consequently, no part of the subject matter submitted. It appears to me. *696therefore, that so far as regards the costs of the arbitration* £¡IC. diicctioil of tllC COUl't WUS wrong.
Smith, J. concurred fully in this opinion. Chapman, J.The award, in this case, is claimed to be void, on two grounds :
1. That the administrator had no authority to submit.
2. That the arbitrators awarded costs.
As to the first point, were there no adjudged cases, I could entertain no doubt. The administrator, in respect to the personal property, dioses in action, &c. stands in the place of the intestate, and has the whole legal interest in them. He may dispose of the personal property, release all personal claims, compound, &c. It would, therefore, seem strange, if he could not submit, when he has power to discharge.— But the adjudged cases are too numerous to admit of a doubt on that subject.
The extent, however, of the administrator’s liability to the representatives .of the deceased, is a different question. They are not bound, in respect to their claim upon him, by the amount of the award; nor would they be, in case of a release, &c. Their claims remain open ; and in a suit on the administrator’s bond, a larger sum might be recovered against him, than might have been awarded to him. Yet, as between the parties to the submission, the award is final, so that either party, in case of a suit on the matter submitted, might plead the award in bar. It lies not, therefore, with the defendant, to say, that the award is not both mutual and final.
As to the second question — I admit, that the old and modern authorities are at variance with each other. In the case of Bussfield v. Bussfield, Cro. Jac. 577, 8. it seems to have been adjudged, that an arbitrator had no authority, without a special provision, in the submission, for that purpose, to award costsj but it is well known, that since that period, great changes have taken place, in the law of arbitrations. The following authorities will evince the truth of the remark. Malcom & al. v. Fullarton, 2 Term Rep. 645 Wood v. O'Kelly, 9 East 436. M‘Laughlin v. Scott, 1 Binn 61. Strong v. Ferguson, 14 Johns. Rep. 161.
*697Hie true criterion, after all, (as this point is now. for the first time, made before this Court.) is to discover, if wo can, what was the intention of the parties to the submission — Having discovered that, the conclusion follows as a matter of course. A man may agree expressly, or impliedly. The costs are an incident. If the-principal mailer is submitted, it would seem, that what was but an incident, would be included. If, however, further arguments were necessary, they might he drawn from a practice, which, I believe, has been universal, in this state. By agreeing to submit a controversy, the parties agree to abide the consequences ; one of which is the costs.
I think, therefore, the decision of the superior court was right.
New trial not to be granted ; and Motion in arrest insufficient.