
    The Portage Canal and Manufacturing Company vs. Edmund W. Crittenden, for the use of Smith Law.
    When the condition of a bond requires compliance with the terras of another obligation, which are not fully stated.in the condition, a declaration upon the bond must set out the obligation referred to in the condition, with a corresponding breach, and the omission to do sois error, though the judgment be taken by confession, if the warrant to confess contain no waiver of error.
    This is a Writ of Error, directed to the Court of Common Pleas of Summit County.
    The judgment rendered in the Common Pleas was upon confession, by warrant of attorney. The declaration filed, was in debt, upon a bond of $21,000, dated April 20th, 1841, executed by the Company to said Crittenden, and payable in thirty days from date.
    The condition of the bond is, that whereas said Crittenden, attorney of Smith Law, Elisha R. Johnson and Nathaniel E. Warwick, has this day discharged a mortgage executed to them for the security of themselves and others, for indorsing certain notes specified in the mortgage, which release was executed upon the express condition that said Portage Canal and Manufacturing Company shall, within thirty days from date, deliver, to Elisha N. Johnson two of the bonds, for $500 each, secured by a deed of trust executed by the Company to John R. Palmer, and also deliver to said Johnson a certificate of ten- shares of stock in said Company, and deliver to Joseph Linzey five'of said bonds and a certificate of twenty-five shares of stock, to John A. Warner three of the'bonds and fifteen shares of stock, and to Samuel C. Sheppard one of the bonds and five shares of stock, and shall also settle with Smith Law, in accordance with the terms of an obligation executed and delivered to said Smith Law by said E. W. Crittenden, on the 30th or 31st March, 1841, which provided for the settlement of $5000 of the indebtedness of the Company, in the same manner as the claims of Elisha It. Johnson and others above named are settled, or by giving said Smith Law a judgment bond for the whole, or any part of his claims against the said Company, at the option of the said Smith Law. If the Company shall pay and discharge the above named obligations, by delivering the stock and bonds in accordance with the conditions stated, then the obligation to be void, otherwise to remain in full force; and upon the discharge of part, then to be void as to such part. Authority was therein given to any attorney to appear and enter judg ment against the Company for the whole amount of the obligations, or any part remaining unsettléd for thirty days from the date thereof. There is no waiver of errors in the warrant of attorney.
    The declaration sets out the bond and condition, and avers as a breach, that the Company would not settle with Law, in accordance with the terms of an obligation executed to Law, by said Crittenden.
    
      John Harris and Otis Wolcott, for Plaintiff in Error.
    
      Lucius V. Bierce, for Defendant in' Error.
   Avery, J.

The pleader, in his averment of the breach in the declaration, has copied the language used in the condition of the bond, to describe the settlement which was to be made with Law.

The bond it will be seen, provided for transferring to sundry persons a number of bonds of $500 each, and a number of shares of the Company’s stock, amounting to several thousand dollars. What is the true amount does not appear by the bond, because the nominal value of the stock is not stated ; but it is apparent enough that these various sums and shares constituted the largest part in value of all that was provided for in condition of the bond. There is however no averment in the declaration of any breach of this part of the condition. The judgment, nevertheless, is for the full face of the bond, together with a sum in damages nearly equal to the whole interest upon it, up to the time of taking judgment. It is not easy to see how so large a judgment could be rendered, if there was not a failure to perform in the particulars above alluded to, and it would seem that the judgment must therefore be erroneous, because the facts appearing upon the record do not authorize a judgment for such an amount.

But in the opinion of the Court the breach actually assigned, is defectively set out. ■ The condition provides, that the Company shall settle with Law, in accordance with the terms of a certain obligation executed in March, 1841, yet there are no averments in the declaration, setting out this obligation, showing what were the terms of it, or that it ever in reality existed. Neither does the condition allude to or describe the obligation in such a manner as to show sufficiently what the obligation was, and to dispense with averments setting it forth substantially in the declaration. In omitting to make these allegations, and to show a breach corresponding to such a state of case, there was error.

Further, the damages appearing in the plea and judgment, are greater then the amount claimed as damages in the declaration. In the declaration they are stated at $3,500, in the judgment at $3,509. This error, if it stood alone, could be corrected here, but it is not the only error. The judgment must be reversed.  