
    Samuel Stroud v. Isaac Shimer.
    ON CERTIORARI.
    1. A state of demand which sets out a contract for the payment of a sum of money is not supported by proof of a contract to pay in articles of merchandize.
    2. For non-performance of such a contract the action should be case and not debt.
    By the state of demand delivered to the justice, “ the plaintiff demands of the defendant eighty-four dollars and forty-six cents, due to the plaintiff on a note of hand given to him by the defendant for eighty-two dollars, dated the 13th day of October, 1823, payable on the first day of January next, on which there is due six months interest which together with the principal makes the aforesaid sum of eighty-four dollars and forty-six cents.”
    On the trial thé plaintiff produced in support of his demand an instrument of writing as follows :—“ October 13th, 1823. On or before the first day of January next, I promise to pay to Isaac Shimer,
    
      Vroom, for the plaintiff in certiorari.
    50 Bushels of Oats, at 37 J cents........................ $18 75
    2 Tons of Hay, at $10................................... 20 00
    20 Bushels of Corn, at 50................................ 10 00
    30 Do. Buckwheat, at 37-J.............................. 11 25
    1 Barrel of Whiskey................................... 12 00
    20 Bushels of Bye, at 50................................. 10 00
    $82 00
    “Witness, Samuel Stroud.”
    Beuben Bockwell.”
    and on which instrument sundry credits were indorsed for corn, oats, &c., at different times.
   The Court reversed the judgment rendered for the plaintiff in the absence of the defendant because, 1st.—The case shewn by the plaintiff on trial is variant from that set forth in his state of demand. In the latter the contract as alleged is for the payment of money; and the contract produced in evidence is for the delivery of oats, hay, corn, buckwheat, whiskey and rye.

2d. Opon breach of the contract contained in the instrument produced in evidence the form of action should have been case, and not debt.  