The opinion of the Court was delivered by

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 *219such 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.