
    Thomas Dooley v. William Eilbert.
    
      Verbal sales — Judgment on certiorari — Becord, on error.
    
    There can be no recovery on a vernal sale of goods exceeding $50 in value unless something has been paid or some part of the goods delivered. _ Comp. L. §4699.
    Where the result in the circuit court on cei'tiorm'i is the same as below, the judgment should be a simple affirmance, with or without costs; it is formal error to render a new judgment for damages and. costs, enforcible by execution from the circuit court.
    On error bringing up a case affirmed on certiorari to a justice, the case is to be heard on the justice’s return alone; the Supreme Court cannot regard a certificate by the county clerk that part of the judgment was collected by justice’s execution before the decision in the circuit. Questions of payment can arise only when it is sought to enforce the judgment.
    Error to "Wayne.
    Submitted Jan. 19.
    Decided Jan. 25.
    Assumpsit. Defendant brings error.
    Judgment modified.
    
      Ford da Morris for plaintiff in error.
    
      Atkmson da Atkinson for defendant in error.
   Per Curiam.

Eilbert sued Dooley in justice’s court for goods sold and delivered and recovered judgment for ninety dollars and costs. On certiorari from the circuit court the only question worthy of notice was whether the justice had any evidence of a valid sale of the goods. The sale was verbal, and nothing had been paid upon it. As the price exceeded fifty. dollars, it was therefore necessary to show that the goods or some portion of them had been delivered. The circuit judge was of opinion there was some evidence tending to show delivery; and we are inclined to agree in this view.

The circuit court erred, however, in the manner of entering up judgment. Instead of a simple affirmance, which should have been entered, the court ordered new judgment for damages and.costs to be entered, to be enforced by execution from that court. But this was a mere formal error, and could have wronged no one.

Plaintiff in error produces here the certificate of the county clerk that it was shown in the circuit court that the judgment had been in part collected by execution from the justice’s court before the case was decided in the circuit; but the paper has no business here. The case on cerUorari is to be heard and decided exclusively on the justice’s return; and questions of payment can only arise when the judgment is sought to be enforced.

The judgment of the circuit court will be so far modified as to make it a simple affirmance of the judgment of the justice with costs. Under the circumstances no costs will be awarded in this court.  