By the Court
Elandrau, J.The .Complaint in this action states simply, that the Defendant Daniels is indebted to the Plaintiff Winslow in the sum of Two Thousand and Fifteen Dollars, for money paid and advanced to said Defendant by said Plaintiff at the instance and request of the Defendant, and also for the further sum of One Thousand Dollars the value of a certain house sold by Plaintiff to Defendant, and demands judgment against Defendant for the amount. The answer denies the indebtedness, and sets out a sealed contract between the Plaintiff and Defendant, by which the Defendant'was to erect for the Plaintiff a public house in Saint Paul by the first day of June 1852, for the sum of $7,900 to be paid in instalments of money, land, and a house, and claims that the Plaintiff violated his contract to the damage of the Defendant of $3500.
The Reply admits the making of the contract, alleges some changes by parol, full performance on the part of the Plaintiff as far as required, and a readiness to fulfill, and charges a violation on the part of the Defendant,'and an intention to defraud the Plaintiff out of the first payments, and not to fulfill.
On this issue the cause was tried, and a verdict rendered for the Plaintiff for $2,819 85 on the 25th of March 1854.
It seems that some exceptions were taken to the evidence offered by the Plaintiff, but were suffered to remain in an unsettled condition for several years, when they were put into the shape of a bill of exceptions and presented to the Judge who tried the case below, for his approval-and settlement, without any proper notice to the Plaintiff’s Counsel, or opportunity to him to propose amendments. The Judge signed the bill, and appended a certificate, that he had examined it, and found it conformable to the truth, and dated the signature and certificate back to the time of the trial.
*117The facts concerning the manner in which this Bill of Exceptions was prepared, were on the argument of this cause in this Court, presented by the Plaintiff’s Counsel, by affidavit, in a motion to strike out the Bill, as no part of the record of the cause. This Court will entertain a motion to purge a record of any matter or paper improperly included in it, and will receive affidavits, of any facts dehors the record, necessary to obtain a full knowledge of how the record has been made up. Sufficient facts having been elicited on the motion to strike out the Bill of Exceptions, to induce the Court to believe that the Counsel for the Plaintiff [had not received proper notice of the settlement of the bill, it was stricken out, which leaves the case to stand or fall on the pleadings, verdict and judgment, as if no exceptions had been reserved on the trial. The Counsel for the Plaintiff in Error insisted with much zeal and ingenuity, that the pleadings presented a case which entitled the Defendant to judgment, and that no testimony could be admitted under them. This Court does not intend to sanction the manner of pleading which has been adopted by the Plaintiff in this case, but on the contrary pronounce it very inartificial in form, and defective in substance, and would feel inclined to hold it fatally so, were there no auxiliary circumstances to sustain it. We gather from the record, without the Bill of Exceptions, that the whole merits of the case were gone into on the trial, and were submitted to the jury and passed upon by them in detail, by way of written questions propounded by the parties, and responded to by the* Jury, in which they find against the Defendant all the issues raised by the pleadings. This Court is bound to suppose and presume that there was sufficient testimony to warrant the Jury in so finding, and whether such testimony was properly admissible under the pleadings or not, cannot be made a question here, in the absence of objections taken, and reserved at the trial: a Defendant by not objecting to the competency of evidence offered on the trial of the cause, may allow the Plaintiff to cure many defects which exist in his pleadings and a verdict rendered upon sufficient evidence so received, will not be disturbed on Writ of Error in this Court, if the Complaint alone will sustain the verdict. We *118think that the defects in the pleadings could be aided by the verdict, and have been cured, and that the judgment should be affirmed with costs.