There are two defects in the record of the proceedings in this cause: 1st. After issue joined, leave was given the plaintiff in the court below to amend his declaration, but it does not appear that the suit was remanded to the rules, nor that any amendment was made, nor that there were any pleadings de novo. 2d. A jury was sworn to try the issue, and at a subsequent term it was tried by another jury; but it does not appear what became of the first. It is not necessary, in this cause, to determine in a general point of view how far these defects are material; because, between the times of empannelling the first and last of those juries, by consent of parties, the controversy was referred to arbitrators. This was certainly a relinquishment of their right to demand a verdict from the fix'st juxy, and bouxxd them to have the controversy decided, on the declaration plea and issue then on record, from which they could only have been released by express order of court.

Wherefore, it is considered by the court that the judgment herein rendered on the twenty-eighth day of last July, do stand unaltered.

Note. — This judgment was affirmed on the twenty-eighth of July, and a reheaxdng was moved for and obtained, and on the rehearing the above opinion was given.