The Opinion of the Court was delivered by
Shields, J.This is a writ of error to the Circuit Court of Jersey county. The action, debt on bond conditioned for the payment of money. The declaration contains two counts. There is a general demurrer to the whole declaration, which the Court below sustained. This decision is assigned for error.
The first count is bad. The bond sued upon contains a condition, that upon the release of Urial Downey from the obligation of a previous bond, he, the said Downey, should pay the appellant the sum of two hundred dollars; but there is no averment in the count that he has ever been released or discharged from the obligation of the previous bond. On the contrary, it shows that his representative is still liable on such bond for the amount of alimony de.creed, which is one thousand dollars.
The second, count merely refers to the original bond and attempts to make it an exhibit, but neither the bond or condition are set forth in the pleadings. This Court cannot go out of the pleadings to ascertain the character of the obligation. It avers, it is true, that a certain obligation was released, but it does not set out, or give the substance of the obligation thus released, neither does it show in what manner it was released. The pleadings are otherwise loose and inaccurate. Both counts, therefore, are clearly defective.
The judgment of the Court below is, therefore, affirmed with costs.
J’idgment affirmed.