
    Michael Swicard against James Wislson, Administrator of George Swicard, deceased.
    admMstratorfnd submit matters of Í7"mde bf'-irwanceir isEsrion. the law will 10%? Sdmno needie^íoTOif But there ought ‘iSt in duration.
    The brief states that this was an action brought to recover a sum ot money, paid, laid out, and expended by the plaintiff, for the use of the estate of Geors-e Swicard, defendant’s intestate. Plain- <-) ' tiff proved, that the defendant and himself ha-d submitted their accouuts to arbitration : that the ' had made an award in writing, by wbich they had awarded the sum of 225 dollars 76 cents to be paid by the defendant to the plaintiff, and that both parties were satisfied with it. The case was tried at Barnwell, Spring Term, 1815, before Mr. Justice Grimlcé.
    
    The presiding Judge being of opinion that the plaintiff was not entitled to recover, as there was no promise on the part of the defendant to pay the amount so awarded, directed the Jury to that effect, who found a verdict accordingly. A motion was now made to set aside that verdict, and to grant á new trial, on the ground of misdirection in the Court
   The opinion of the Court was delivered by

Mr. Justice Nott.

There can be no doubt that an administrator or executor may submit matters of account to arbitration. (5 D, and E. 6. 7 do. 453. 1 do. 691.) And where an award is made ia pursuance of such submission, the law implies a promise to pay. Not, indeed, that he shall pay out of his own estate, but out of the assets in his hands, to be administered, if he has any.

It does appear, from the face of the brief, somewhat doubtful whether the evidence supported the declaration. But as the proceedings are not before us, we cannot see that it does not contain a count to which the evidence applied. And as the party himself has not thought proper to take the exception, the Court is not bound to take it for him, particularly as it goes, to defeat the justice of the case. I am of opinion a new trial ought to be granted.

Colcock, Cheves, and Gantt, J. concurred;

Grimké and Johnson, J. dissented.  