It is insisted by the plaintiff in error, that whatever opinion be entertained of the plea, the fourth count of the declaration is defective-, and that the demurrer must be visited upon it. The consideration of this argument requires us to compare that count with the agreement set out on oyer. It is stated in the declaration that in consideration that Kolb & McKay verbally agreed to transfer (by indorsement without recourse) to Hugh McDonald two promissory notes of John McKay, payable to the order of Kolb & McKay, for the sum of $662 50, each, both dated 18th April, 1837, and payable the one on the 1st April, 1838, the other on the 1st October of the same year, and also a mortgage for the better securing of the same; defendants then agreed by the same articles of agreement, among other things, to give to the plaintiffs a promissory note, to be signed by the defendants, and payable tó the plaintiffs, twelve months from the date of the articles of agreement, for a sum equal to the amount of both notes, and interest.
The written agreement which the declaration professes to describe, binds John McKay as principal, and the plaintiff in *532error as surety, to give their promissory note, payable to the plaintiffs, “ twelve months from the date thereof,” for whatever sum the arbitrators, that day chosen by the plaintiffs and John McKay, to settle matters between them, may award; this latter sum is to be added to the amount of two promissory notes, and interest, payable to Kolb & McKay; which two notes were then in suit in Charleston, S. C., and also an account between the plaintiffs and John McKay, which is in suit at the same place.
It is clear that the cause of action set out in the count is variant from the agreement. The former describes the note to be given by the defendants, to be made payable twelve months after the execution of the agreement, while that which the defendants undertook to make is to be payable twelve months after its own date — the count states that there was a verbal agreement for the transfer of the two notes payable to Kolb & McKay, as well as a mortgage for their security, to McDonald, but the agreement contains no such stipulation : Again, the declaration describes the two notes by their amounts, dates, &c., although the agreement merely identifies them by stating to whom they are payable, and that they were in suit, &c. The declaration is also silent as to the submission to arbitration, says nothing about the account, or that the note is to be given when the award is made, and does not show that the plaintiffs have yielded up all other demands, the adjustment of which the agreement contemplated ; and states that the notes and mortgage were to be indorsed to McDonald.
The variance between the count and cause of action set out on oyer, is so palpable and material, that it cannot be affirmed by a comparison that they are prima facie identical. It is clear that the agreement has not been set out according to its legal effect, and this is the usual teste upon a question of variance.
My brethren incline to the opinion that if the plaintiffs are not chargeable with neglect or fault which prevented the award provided for by the agreement from being made, and 'would release all their demands therein referred to, but the notes and account, that a declaration might be so framed on the agreement, as to entitle them to recover in a new action *533the amount of the notes and account. I will not affirm that the reverse is the law, but would, under such a state of facts, consider it safer to make the agreement inducement to the action, and declare in assumpsit, deducing the promise to pay from the agreement, or rather making the agreement evidence of such promise. An action in that form could not perhaps be maintained against the surety. But we all agree that the variance is such that the circuit court should have visited the plaintiffs’ demurrer upon their declaration. The judgment is therefore reversed, and the cause remanded, if the defendant jn error desires it.