The opinion of the Court was delivered by
Weight, A. J.It might be enough to say that the agreement of August 30, 1873, “to submit the case to arbitration,” did not amount to an actual submission, and this alone would dispose of the appeal. An arbitration is the submission of the matter in dispute to the judgment of one or more persons named. If they are not designated, it is no submission. — Billings on Awards, 39; Russell on Arbitrations and Awards, 65. Here no persons are designated as Referees, nor was the manner of their appointment fixed by the agreement. The original parties were not bound by it, for it was not in such a shape as to put it in the power of the one to compel its performance by the other. The interest to b.e concluded by the decision of the Referees must appear in a submission. — Russell on Arbitration, 49. If an agreement of the kind before us could operate as a discontinuance of the action, it must be because, by the will and consent of the parties, another tribunal for the determination of the issues which it involves has been substituted.
But the agreement here did not name the persons who were to act as Referees, and in no way provided either for their number, appointment, or even their selection. It could not, therefore, bind the personal representatives of either of the parties who may have died before further action under it, because it contained no terms or conditions for the breach of which an action could have been maintained against the surviving party. We do not see how an agreement can operate as a discontinuance of a pending action when no stipulation to that effect is contained in it, nor by the widest implication can be Inferred from it. The authorities all agree that if either of two parties to a submission die before the award is made, the power of the arbitration is gone.
That, however, is not the precise question here. As we have said, it is whether the agreement of itself discontinues the action, and, *146in our judgment, it does not. By Section 144 of the Code, the action did not abate by the death of the plaintiff’s intestate, and was continued in proper time and mode by the proceeding on the part of the administratrix.
The motion is dismissed.
Moses, C. J., and Willard, A. J., concurred.