
    John H. Hand, et al. vs. The President and Selectmen of the Town of Columbus.
    An action to enforce an award cannot be maintained without proof of a submission on the part of the defendants.
    Where, in an action by the president and selectmen of a town to enforce an award in their favor, it did not appear in proof that the board officially authorized the submission, or thaira majority of them subsequently ratified it, and the court instructed the jury that if the members of the board signified their approval of the submission in conversations, it would be sufficient; Held, that the instructions were calculated to mislead the jury, and were erroneous.
    In error, from the Lowndes circuit court.
    This was an action of assumpsit upon the following award:
    “ A difficulty between the corporation of Columbus, Mississippi, and Messrs. Hand & Huddleston, in regard to money deposited by said corporation with said Hand & Huddleston, having been submitted to us for arbitration, we, after a full investigation of the facts, hereby award that said Hand & Huddlefcton shall pay to said corporation five hundred dollars, in notes of the Commercial Bank of Columbus, Mississippi, (this being the amount and kind of funds claimed by said corporation, through their representative, Eli Abbott, Esq.) in lieu of five hundred dollars, in Union money, paid by them to said corporation, and further, we exonerate Abraham Murdock, as agent, and Hand & Huddleston from any blame whatever in said transaction, as, from the facts before us, we are of opinion they acted as they believed for the best interest of the corporation. Given under our hands at Columbus, this 22d day of September, 1840.
    W. B. Winston, Andrew H. Jordan.”
    Objection was made to the admission of this award, on the ground of a variance from that declared on ; but the action of the court thereon not being noticed by this court, is not set out herein.
    
      Eli Abbott, on behalf of the plaintiffs below, testified that he was mayor of the town of Columbus, and that as such, he submitted the matters in dispute between the parties to the arbitrators ; that he did so solely on his own authority, as mayor. That after the arbitration, he saw some of the members, does not recollect how many, and they approved of what he had done.
    Henry B. Goodrich, for plaintiffs, testified that he was a member of the board of selectmen, and that to the best of his recollection there was a meeting of the board, and that at that meeting Eli Abbott was authorized to make the submission. The action of the board, as a board, was not spread on the books, or reduced to writing, but the members authorized and approved the submission in their conversation. That he did not recollect how many of the board thus expressed their authority and approval.
    George Stillman, on the part of the plaintiffs, proved, that as the treasurer of the town he deposited five hundred dollars of the notes of the Commercial Bank of Columbus, with the defendants.
    This was all the evidence.
    The defendants asked the court to instruct the jury, 1. “ That unless the plaintiffs had proved-payment, or tender of the five hundred dollars, Union money, in the said award mentioned, to said defendants, they must find for the defendants.” This was refused, and the following charge given instead : “ That the right of action accrued to said plaintiffs by the said award, immediately upon rendition thereof, without any further action on the part of the plaintiffs.”
    2. The defendants asked the court further to instruct the jury, “ That a mayor has no power, by virtue of his office, to submit to arbitration the rights and interests of the corporation; and that unless the jury shall believe, from the testimony, that the said Eli Abbott, mayor, as aforesaid, was authorized so to submit in this case by the said board of selectmen, acting in their collective and organized capacity as a board, they must find for the defendants.” This charge was also refused, and in lieu thereof the following given: “ That if the members of the board approved of the submission, and signified in conversation such approval to said mayor, that was sufficient; that no written order or action of the board was necessary.”
    To these refusals and charges exceptions were taken, and after a verdict in favor of the plaintiffs below, this writ of error was prosecuted.
    Howard, for plaintiff in error.
    1. The objection on the ground of variance was well taken. The matter of the Union money is not mentioned in the declaration, which was a part of the transaction, and a subject of the award.
    2. There was no sufficient proof of authority in the- president to submit the controversy to arbitration. There should have been an express ratification of the submission by a majority of the board, and in this respect the instruction of the court was wrong. In absence of a satisfaction entered on the minutes of the board, it was surely necessary to show that a majority of the members had confirmed the authority, which the court did not state in its instruction.
    3. The verdict was erroneous, because it did not follow the award. The award was for payment in a particular currency, and the verdict should have followed award, unless it was in proof that this currency had depreciated by the neglect of the defendants to pay it over. It was no objection to the award that it was against law in this respect, for an award will not be set aside because it is against law. Mitchell v. Bush, 7 Gow. 185; 14 J. R. 96; 9 lb. 212. The verdict should have been for Commercial Bank notes.
   Mr. Justice Thachee

delivered the opinion of the court.

This was an action in assumpsit, in the circuit court of Lowndes county, to enforce an award. The case is brought up on a bill of exceptions to the ruling of the court below. The evidence in the cause is all set out in the bill of exceptions, and it does not therein positively appear that the board of selectmen of Columbus officially authorized its president to submit the matters in difference to award,- nor that a majority of them, in any mode, subsequently ratified it; nor does it - at all appear that the defendants agreed to the submission. Upon this evidence the court below charged the jury that if the members of the board approved the submission, and signified in conversation such approval to their president, that was sufficient, no written order or action of the board being necessary. As the record shows the evidence, this charge, we think, was erroneously given, because it was calculated to mislead the jury. Although it appears that some of the members of the board conversed upon the subject of the award, and assented to it, it is by no means clear that a majority of them did so, and the approval of the whole board, without proof of a submission on the part of the defendants below, would not have been sufficient to warrant the finding by the jury.

The judgment of the court below is therefore reversed, and the case remanded for further proceedings.  