delivered the opinion of the Court.
This was an action of assumpsit on an award. Whiting had judgment in the Court below. There are two counts in the declaration. The first sots out a submission in writing, and the award thereon. The second sets -out a submission without writing, and an award thereon. The bill of exceptions shows certain evidence in the cause, and then the defendant’s counsel prayed the Court to instruct the jury that the evidence does not support the declaration, which the Court did. This instruction is wrong. The evidence does certainly support the declaration, and it was for the jury to say if the evidence'is satisfactory.
One particular point made in the argument of the case was, that it appears by bill of exceptions that the written submission was on an instrument not sealed, and the arbitrators, in reciting their authority, say they were appointed by bond ; but it was proved that the submission given in evidence was the one under which the arbitrators acted. By this it appears the arbitrators were mistaken, as to the technical name of the instrument of appointment. This is not like the case where they mistake the extent of their authority. The mistake of the arbitrators, as to the manner of their appointment, is not deemed to be material. And it may be farther remarked, that tiie second count no where alledges how the appointment was made, whether by bond or otherwise; so that we cannot even say how they were appointed. But the question still recurs, whether the recital by the arbitrators of the manner of their appointment, is at all necessary | we believe it is not. It is no part of the award, and is no mistake in a material thing.
The judgment of the Circuit Court is reversed, and sent back for a new trial,