
    *Irish v. Irish.
    PoEAKGsre—Variance.—In debt on a bond, the declaration alleged the condition to be for the payment of a certain sum of money on a certain day. The condition, as shown on oyer, was for the payment of the money out of the profits of certain real estate. Held, that the variance was fatal.
    ERROR to the Madison Circuit Court.
   S'OXLIVAN, J.

Debt by James M. Irish against Samuel D. Irish, on a bond with a condition. The declaration sets out the bond, and states that it was subject to a' condition amongst others, as follows, viz.: That the defendant should pay to Clarissa A. Irish the sum of $500, on or before the 1st day of April, 1839. The breach assigned is that the defendant did not pay to the said Clarissa the said sum of $500 on the day named in the condition, or at any time since. The defendant craved oyer of the bond and condition, and demurred to the declaration. Demurrer overruled, and judgment for the plaintiff.

The condition of the bond, as shown on oyer, after reciting that whereas James M. Irish had transferred to Samuel D. Irish a certificate for a tract of land on which were erected certain mills and machinery, provides that the said Samuel shall make certain'payments, that is, to one Alfred Makepiece the sum of $600, to Eliza McClanahan the sum of $500, to Clarissa A. Irish the sum of $500, to Amelia M. 'Irish and Elvira Jane Irish each the sum of $500. It is also a part of the condition that as William C. Irish, Calvin W. Irish, and James D. Irish severally arrive at the age of twenty-one years, a deed shall be made to each of them by Samuel D. Irish of one-fourth part of the lands and tenements above named, and that, in consideration thereof, they shall be equally bound with Samuel for the sums of money above required to be paid. It is then provided “that all of the said payments above named and described are to be made out of the profits and incomes arising from the use of the said lands, mills, and machinery.” There are other undertakings and qualifications set out in the condition of the bond which it is not necessary now to notice.

1 It is difficult to understand, from the condition of the bond, the true meaning of the parties to the contract. Its ^^stipulations are complicated, and we are of opinion that a fair and equitable adjustment of the rights of the parties can better be had in a Court of chancery than in a Court of law. We have come to the conclusion, however, that the promise to pay the sums of money named in the condition of the bond, amongst which is the sum of $500 to Clarissa, for which the present suit wras brought, was not an unconditional undertaking; but that the payments were to be made only out of the profits of the estate conveyed.

IF. Quarles and A. M. Brown, for the plaintiff.

IT. Broion, for the defendant.

There is a variance, therefore, between the contract declared on and that shown on oyer.

.Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.  