
    [*] MARTIN and MARTIN against STEELE.
    OH CERTIORARI.
   Pennington, J.

The 1st, 2d, 3d and 4th errors assigned in this cause, complain of irregularity in respect to the summons and venire, which, if founded in fact, are cured by the appearance of the defendant, and the verdict. The 5th error goes to the sufficiency of the state of demand. The state of demand is in the form of an account for corn sold and delivered at several times. The time of delivery, the quantity, and the price are all set out, but the sums are not carried out, or the account footed. As this can be rendered certain by calculation, I am of opinion, the state of demand is sufficient.

The 6th error assigned, complains of the justice admitting improper evidence It seems that the defendants below, the plaintiffs in certiorari, objected to the examination of two witnesses, as the justice states, because the plaintiff had given testimony in writing. The justice overruled the objection. There is no fact disclosed by the record, to show why these witnesses should not be examined. It is to be regretted that counsel do not look more fully into the record of the justice before they draw their reasons for reversal.

[528] The 7th error assigned is, that the justice refused to nonsuit the plaintiff when it appeared by the evidence in writing produced, that the cause of action, if any, was against Oliver Martin alone, and not against Oliver Martin and Samuel M. Martin, the defendants. It appears that this was the subject in controversy; and parol as well as written evidence given on the subject. I cannot perceive how this court can, with competent knowledge, judge whether the justice did right or wrong, unless all the testimony [+] was spread on the record, which has not been done.

It is true, that there is a due bill from Oliver Martin, to Steele, the plaintiff below, sent up with the proceedings; which due bill was given for a quantity of corn, corresponding in time, quantity, and price, as to part of the corn charged in the state of demand. It is a well settled rule that a promissory note does not extinguish a simple contract debt; and even if it did, a question of fact might arise whether or not this due bill was given for the same corn. It is very possible that injustice has been done to Samuel M. Martin; and that he has been improperly connected with his father in the action below, and that against evidence; yet it does not appear to me, that there is sufficient matter on the record, to justify the court in saying so. I am, therefore, of opinion, that the judgment ought to be affirmed.

Kirkpatrick, C. J., and Ross ell, J. — Being of the same opinion,

Judgment affirmed.

Cited in Murat v. Hutchinson, 1 Harr. 46; State v. Mayhew, 4 Halst. 70; Carter v. Lackey, Spen. 608; Steward v. Sears, 7 Vr. 175; McQuade v. Emmons, 9 Vr. 400.  