Oscar E. Riley brought assumpsit in the Taylor county Circuit Court, and, judgment having been rendered against the defendants, Claude B. Jarvis and Granville E. Jarvis, they bring the case here.
The defendants demurred to the declaration and each count, and the court sustained the demurrer and gave judgment upon such demurrer upon all the counts except the first, and overruled it as to that count. The first count is the ordinary -indebitatus assumpsit for goods, wares, and merchandise sold and delivered. The second is a special count, alleging that defendants and plaintiff made a written contract whereby Claude ¡S. Jarvis agreed to pay individually, out of his own funds, to plaintiff', ten dollars per month, so long as they should continue in business together, or so long as the plaintiff should run the business in a business like and profitable manner, as part consideration for his time and labor about the business; that Granville E. Jarvis executed the writing and bound himself equally with (-laude B. Jarvis, as security for him; and that the plaintiff, under the writing, carried on the *45business for a certain specified time, for wliicli the defendants became bound to pay him one hundred and twenty dollars, but they refused and failed to do so, etc. The third count was in debit a tus assumpsit, containing a clause for goods and chattels sold, horses sold, work done, and material therefor provided, and other common clauses.
Appellants’ counsel contends that there is a misjoinder of counts, and this on the idea that the liability stated in the second count is against Granville E. Jarvis only as surety, while other counts charge both Olaude tí. and Granville E. Jarvis with joint liability. I think there is nothing in this contention. Where two parties, by written obligation, bind themselves to pay another a given sum, though one sign with the word “surety” annexed to his name, or it be stated in the writing that he is surety, or binds himself as surety, both are equally bound as principals, so far as it concerns the creditor’s right, as they both promise to pay him. It is a mere memorandum to evidence the fact that the one is surety as between the parties bound. Hunt v. Adams, 5 Mass. 358; Id., 6 Mass. 519; Humphreys v. Crane, 5 Cal. 173; opinion. Harris v. Brooks, 21 Pick. 195; Wilson v. Campbell, 1 Scam. 493. Where the surety does not sign the note, but puts a memorandum at its foot that he binds himself as surety for payment of the note, it is the same. The obligation is joint and several. Hunt v. Adams, 5 Mass. 358; Wilson v. Campbell, 1 Scam. 463. I do not think the declaration need have noticed the suretyship feature, as its omission would have been no variance, because immaterial; and, being in the declaration, it does not have any effect, the count charging a joint liability notwithstanding its presence.
The defendants moved the court to strike out the plaintiff’s evidence, but the motion was refused. The only evidence the plaintiff offered was the written contract, and of service under it by the plaintiff'. That evidence could not sustain the action, because it presented a case of variance between alley at a and probata, as the only count of the declaration remaining after action on the demurrer was that one for goods sold and delivered, the first count, and thus there was no count to justify evidence of service, performed, and the plaintiff’s evidence should *46Lave been stricken out. The case was tried, likely, under a misconception that it was the second or special count, for service under the written agreement, that was left standing after the court’s action on the demurrer; whereas, it is said, and is likely, by mistake in making up the record, it was the Jirst count only that was left. We. must go by the record. We have no knowledge of fact by which to correct it, and no power to correct it. The account tiled with the declaration spec-iiies, as the ground of the plaintiff’s claim, service performed under the contract; Jmt when the court, upon demurrer, struck out all of the declaration under which that account was provable, the account went out with‘the count to which it related, or became improvable under the count remaining. The account is no part of the declaration. You cannot plead to it. There must be a count in the declaration for it to rest upon, — one suiting its nature under which it may be proved. Ho that specification of account cannot shelter this evidence. It is said, in brief of counsel, that the defendants offered evidence in defence, and that this would justify the action of the court in refusing to strike out the plaintiff’s evidence. The record contains not a scintilla of any evidence given by defendants. Whatever the fact may have been on the trial, we know only the record. Moreover, had there been such evidence, it would not sustain the court’s action ; for, while it. is true that a motion to exclude the plaintiff’s evidence, must be made before the defendant offers any, I suppose the case is different where it is one of total variance between allegata- and probata, as there is no count at all to rest the evidence on. Though you have ever so strong a case for recovery under the evidence, you cannot recover without a declaration to admit that evidence.
Again, it is said that the defendants waived their demurrer as to the second count on the theory that they pleaded to it. The court gave final judgment upon the demurrer in favor of the defendants on that second count, and how even a plea to that specific, count at a subsequent term could bring back that count to the declaration I can- ' not see, or how they could waive their demurrer. But there was no plea to that second count specifically. The plea of payment relied on as such waiver was made at a term after *47that at which the court acted on the demurrer, and that plea, so far from being applicable to the second count, was applicable only to the declaration as it then stood — that is, to the. first count.
It is argued that the plea of payment is to the account filed as a specification of the plaintiff’s claim, and that is for service, thus treating the demand specified in it as before the court. (1) The plea is in terms to the debt demanded in the declaration. (2) There can be no plea to a bill of particulars. Abell v. Insurance Co., 18 W. Va. 400. (3) There could be no such account without a count to support it. But it is said that, even if the second count, be treated as out of the case, the plaintiff should have recovered under the first count for goods sold and delivered, as there was no other plea than payment, which acknowledges the plaintiff’s demand. This position loses its force when we see that the plea- of non-a.xxtt.mpxit to the whole declaration was put in at the same time the demurrer was entered.
Appellants complain of the rejection of two pleas. One was a plea of rex jad-imta, based on a judgment of a justice for some cause in favor of defendants. It is faulty, because it does not in any way show that the dismissal of the suit before the justice was on the merits, so as' to be a bar to a second suit; for, if it was a nonsuit or any other of many causes not precluding another suit, it would not bar. 1 Bart. Law Prac. 534, 535; 7 Rob. Prac. 221; 1 Greenl. Ev. § 530; Burgess v. Sug, 2 Stew. & P. 341. A plea should aver that the decision was on the merits, or it should at least appear by the record vouched. This plea does not vouch the record of the judgment or so aver.
The other rejected plea is that, in another action for the same cause before a justice, there was a submission to arbitration yet pending. The plea is bad, as not stating and describing formally the action in which the submission took place. It wants legal certainty on that point. Does it present good cause for abating this action — that is, does the submission to arbitration bar another action for the same cause? It seems well settled at common-law that a mere agreement to submit to arbitration will not preclude a new suit. Refusal to comply with it is only a ground of action for damages. Corbin v. Adams, 76 Va. 58; Morse, *48Arb. 79; Smith v. Compton, 20 Barb. 262; Tobey v. County of Bristol, 3 Story, 800, (Fed. Cas. No. 14,065); Knaus v. Jenkins, 40 N. J. Law, 288; 1 Bart. Law Prac. 581, note; note in Nettleton v. Gridley, 56 Am. Dec. 1388; Haggart v. Morgan, 55 Am. Dec. 350, 354. The agreement is revocable until actual award; but then it is not, and the award may be pleaded in bar of another action. Martin v. Rexroad, 15 W. Va. 512; Morse, Arb. 90; Corbin v. Adams, 76 Va. 58. Until the award the agreement is revocable, as will appear from authorities above, and cases cited as to its revocability in Nettleton v. Gridley, 56 Am. Dec. 383. And when the agreement has been made a rule of court, it is no longer revocable. Leonard v. House, 15 Ga. 473; Brickhouse v. Hunter, 4 Hen. & M. 363; Haskell v. Whitney, 12 Mass. 47; Frets v. Frets, 1 Cow, 335; note to Nettleton v Gridley, 56 Am. Dec. 383. While the rule at common-law is that an agreement to arbitrate will be revocable before award, and will not bar another action for the same cause, hew is it under our statute? It is different. The very purpose of our statute provisions on the subject was to render arbitration more effective than it had been. The reason vThy the agreement, was revocable under common-law was, not that arbitration was not favored by it as tending to end litigation, and not for want of consideration, as the ending of litigation was strong consideration, but, because of that principle of law that parties could not, by agreement, oust the courts of the jurisdiction assigned them by law, and could not debar themselves from appealing to the law'and tribunals of the laud; but our legislation has legitimated such agreements, and thus the reason of the old principle has been abrogated.
Our Code (chapter 108) provides that, whether a suit is pending about a controversy or not, parties may submit it to arbitration, and agree that such submission be entered of record in any court, and, on proof of such agreement out of court, or by agreement in court, the submission shall be entered in court, and a rule made on the parties that they shall submit to the award under it, and that such mere submission, either entered or agreed to be entered, shall not be revocable without, leave of court. This is at once seen to go further than common-law, since by it not until award was the submission irrevocable, but *49under statute the submission by agreement in court, or by agreement out of court that it be entered in court, is not revocable. Under it, do you let the party ignore the submission and bring a new suit? If so, where is the sense of making the submission not revocable? This Oourt, under this statute, has held that an agreement to arbitrate, providing that the award shall be entered as the judgment of the court, cannot be revoked without leave of court. Stiringer v. Toy, 38 W. Va. 86, (10 S. E. 26). The justice’s law (Pode, e. 50, s. 92) provides, as I understand it, that, in a pending action, the parties may by agreement submit to arbitrament, and section 98 provides for judgment on the award. Now, when such submission is made by order in the case, it is not revocable for two reasons: (1) Recause section 96 says that, if no award be returned in fourteen days, the justice may set it aside, but not without notice to the other party, thus giving him right to contest, and showing that it cannot be revoked at the mere pleasure of one pai'ty; and (2) because, when the .submission is entered in the docket, it is a recognition by the court of the arbitration, and is in itself a rule, or equivalent to a rule, upon the parties to submit to the coming award, which, we have seen, renders the submission at common-law even irrevocable. Their agreement implies a consent that the submission shall be made a rule of court. The rule is idle form. Morse, Arb. 80.
But how, in a second suit, is the submission in the first to be availed of? Not by a plea in bar, for the mere submission does not, like an award, pass on the merits. You can plead an award in bar, but not a mere submission, or a pending arbitration. You must use a plea in abatement, as the fact the plea sets up does not bar the cause of action, but only abates the second suit. It is the same as the plea of another suit pending for the same cause, which must be a plea in abatement. 1 Bart. Law Prac. 290; Robrecht v. Marling's Adm'r 29 W. Va. 765, (2 S. E. 827); Morse, Arb. 79. The plea in this case was tendered after a plea of iwii-asstunpsit, and came too late, and was for that reason rightly rejected.
Judgment reversed, verdict set aside, new trial granted, and remanded.