majority">Storrs, J

The defendant in this case, having died after this motion for a new trial was filed, the preliminary question arises, and is reserved for our advice, whether his administrator may prosecute it. According to the rules of practice which prevail in the superior court, that is the only mode in which he can revise the proceedings on the trial of the case. To refuse to allow him to prosecute this motion would, therefore, be to establish the principle that the creditors and heirs of a deceased person, and those otherwise interested in his estate, would be remediless against any errors which may have intervened on the trial; a doctrine which would be palpably most unjust, and opposed to the principles of the common law, by which, in all personal actions, an erroneous judgment may be reversed by the representative of either party who is prejudiced by it. Our mode *81of practice is chargeable with no such defect. According to the common law mode of proceeding, which formerly prevailed here, the decisions of the court, in the progress of the trial of a case, might be introduced upon the record by a bill of exceptions, and revised by writ of error. In case of the death of the party against whom judgment was rendered, that writ, whether the action died with the person or not, might be brought by his representative. But as that method of revision was practically an inconvenient one, and oftentimes, by the strictness of the principles by which it was governed, which required, a reversal of a judgment for any error whatever, although it did not affect the justice of the case, a rule was long since adopted by the superior court, by which it was abolished in all cases, and the present practice substituted, by which the questions decided on the trial are presented on a motion for a new trial, and reserved for the advice of this court, on which the judgment rendered by the superior court in the case, is established or set aside, according as the motion is, or is not granted by that court in conformity with our advice. These motions, in regard to the disposition of them, are subject to the discretion of the court, and a new trial is granted or refused, absolutely or on terms, as justice requires. They do not become a part of the record in the case in which they are made; they are not considered as a new or independent action or proceeding; nor do they differ, in their character, from any other motion made in the progress of the case. As it is plain, from this account of the introduction of the present practice on this subject, that it was not designed to prevent any person from revising a judgment, by which he is prejudiced, to the same extent as he could under the former practice, and as the judgment in the present case might, under the latter, have been revised, on a bill of exceptions and writ of error, by the defendant in this case, and after his death by his administrator, and as it is obvious, moreover, that the present question can be reviewed in no other mode than by allowing the administrator to prosecute this motion, we are clearly of opinion that the superior court decided correctly in permitting hipa to do so.

*82On the merits of this motion, two questions have been presented; first, whether the instrument of the 26th of October, 1847, executed by Kennedy, constituted, under the agreement, between the parties to this suit, of the 7th of October, 1847, an award or decision as to the extent to which the defendant should have the right to lower the bed of the Pachaug river, which, if unimpeached by the evidence offered by the plaintiff, was valid and conclusive on that question ; and, secondly, whether if it did, it could be impeached by that evidence. The result to which we have come on the first of these questions, renders it unnecessary to consider the other.

The following are the material facts on which the first question depends. By the agreement before mentioned, the parties, who owned, .mills on the opposite sides of the river, which runs between their lands, agreed that a point four inches below the natural bed or bottom of the river, as the same was when it was surveyed by Kennedy, at the outlet of the defendant’s mill-ditch, and extending to the entrance of the plaintiff’s ditch, should be ascertained by Kennedy, and that said point should be designated by suitable bounds, marks and monuments, to be placed by John E. Lindley and Joseph H. Doane, in the bed of the river; that, above said point so designated, the plaintiff should not have the right to raise the water in his mill-ditch ; that the defendant should have the right to reduce the bed or bottom of the river, to the extent of said four inches as aforesaid, and to remove the obstructions below said monuments, to be placed as aforesaid across said river, on both sides of the river, so far as his land extended; and that the parties thereafter should use and enjoy their lands and mills as their rights should be thus determined. Kennedy ascertained said point, and caused it to be indicated by the upper surface of a stone, which he placed in the bed of the river near the mouth of the defendants mill-ditch, and gave a certificate thereof, which is contained in the instrument before mentioned, executed by him. Lindley and Doane were present when the said point was so ascertained by Kennedy, but refused to sanction his determi*83nation, or to place any bounds, marks, or monuments, in the bed of the river to designate it, and it has never been so designated by them.

On the trial of this action, which is in case, alleging that the defendant excavated the bed of the river lower than he had a right to do, the defendant on the trial, claimed that the certificate of Kennedy was conclusive between the parties, as an award made by him in pursuance of said agreement, to prove that the point so ascertained by him and designated by the upper surface of the stone placed by him in the river, was precisely four inches below the natural bed of the river, as it was when it was theretofore surveyed by him, and therefore, that the defendant had a right to excavate the bed of the river to that point. The plaintiff admitted that the agreement between the parties, was a submission of their rights in respect to the use by them respectively of the water of the river, and that an award, made in pursuance of it, would, if unimpeached, be valid and conclusive as to such rights ; but claimed that Kennedy could not alone, and without the cooperation of Lindley and Doane, make a valid award under the submission; and further, that if he could, his doings were liable to be impeached by proof that the point ascertained and fixed by him, was twenty-six inches below the natural bed of the river, between the two ditches, instead of four inches only, and that Kennedy in fixing that point acted fraudulently and unfairly, and committed a mistake on his own principles. The court decided in conformity to the claim of the plaintiff.

Waiving any enquiry, for ourselves, as to the character and effect of the agreement entered into between these parties, and considering it in the only light in which they have treated it, as a proper submission of their rights to arbitrament, we are of opinion that, as it stipulates, that the point in the bed of the river, therein described, shall be ascertained by Kennedy, and designated by Lindley and Doane, by suitable marks, bounds and monuments, to be by the two latter placed in said bed, and that the parties should, in the use and enjoyment of their lands and mills, conform to that *84point, nothing short of an ascertainment and designation by those persons respectively, was a full and complete compliance with the requirements of the agreement, or constituted, or was equivalent to an award, as to the rights of the parties, or a determination or settlement of them, according toils terms or true intent. In an action of covenant, brought directly for a breach of this agreement, it would clearly be necessary to aver and prove that the point was ascertained and designated in the mode prescribed by it; and we do not perceive why it is not as necessary, in an action like the present, in which it is sought to give a specific effect to what was done, by the arbitrators under it, to prove those facts, as it would be in a suit in which damages were claimed for its violation. A submission to arbitration is only a particular species of contract, and the question of the liability or obligation of the parties, growing out of the- award under it, is to be determined by the principles applicable to all other contracts, in whatever mode such liability or obligation is sought to be enforced. As et submission, this is certainly one of a singular character, and it corresponds with none which we find in the cases on the subject of arbitrament. We must, therefore, look to the general rules applicable to that subject. That which appears to be applicable here, is the one which requires that the award should be conformable to the terms of the submission. It must be made by the persons to whom the matter is referred, and they must act in the manner prescribed in the submission. In this respect, the proceedings of the arbitrators, in the present case, were defective. The object of this submission was two-fold; the ascertainment of the point mentioned in it, and the designation of that point by visible, permanent monuments. These were distinct acts, although to be done, connectedly, and were both required to be done by the arbitrators, not, however, by them conjointly, but the first of them by Kennedy, and the other by Lindley and Doane. The office of Kennedy was entirely different from that of the others. It was really a reference to different persons to perform respectively distinct, though connected acts, designed to accomplish together one entire ob*85jeet, and without the concurrence of which that object would be frustrated. One of these acts, the ascertainment of the point required, which was to be done by Kennedy, was performed. There his authority ceased. He placed a stone in the bed of the river to indicate that point. That, however, although it might serve as a guide to the other arbitrators, in regard to the duties which they were to perform, was a nugatory act so far as it, by itself merely, directly affected the parties to the submission, because it did not provide that that act alone should determine the rights of the parties; and it therefore had no more effect upon those rights than if it had been done by any other person. The other act, that of designating the point by monuments, was entirely omitted to be done by the two other arbitrators; for it is conceded that they neither placed any monuments themselves, nor sanctioned that which was placed by Kennedy. And it is not claimed that the plaintiff assented to the location of that monument by Kennedy or prevented or interfered with the' action of the other arbitrators. This then is a case of a partial and defective execution, by the persons to whom the controversy between the parties was referred, of the powers conferred on them by the submission. It is not a good answer to this objection, that the ascertainment of the point, and not the designation of it by monuments, was the principal and only essential object, and that the other was futile and unimportant. We cannot say, nor do we think, that it was not quite as important to these parties that the point in question should be designated and marked by visible and permanent monuments, as that its locality should be ascertained. But it is sufficient that the parties have chosen to make it one of the terms of their agreement that it should be done, and that we have no right to dispense with it, or to vary or refuse to effectuate that agreement. The court below, therefore, correctly decided that the certificate of Kennedy was not entitled to the effect claimed for it by the defendant.

We are not satisfied, on an examination of the testimony in the case, that a new trial ought to be granted, on the *86ground either that the verdict was manifestly against the weight of the evidence, or that the damages given were excessive.

A new trial is not advised.

In this opinion the other judges, Hinman and Ellsworth, concurred.

New trial not to be granted.

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