There is no difference of opinion, nor any hesitancy, in the court as to the proper decision of this cause. It is entirely plain that there never was any delivery of the property to Lynch, accepted by him so as to make a sale, on which Mix could have sued him for the price. And the decisions of both the .county court, and the Albany justices’ court, must be reversed, and judgment for costs given for the defendant.
Were this all of the case, there would be no occasion to write any opinion upon it. But there is a point made, on the part of the respondent; (and it is the real ground on "which the county court based its decision;) which the court think should be . directly adjudicated under the provisions of the Code.
It is this: That, upon an appeal to a county court from a justice’s judgment, where the return does not show evidence sufficient to sustain the judgment; and where the justice does not certify that his return contains all the evidence, Src., given and had before him; the appellate court will, in support of the judgment, presume that there was other and sufficient evidence given to warrant the judgment.
This has been uniformly held, in cases brought up by certiorari; and there is no occasion to question its propriety; because, by the statute regulating proceedings under that writ, (see 2 Rev. Sts., 3d ed., p. 351, § 181,) it is provided that the justice, in his return, shall truly and fully answer to all the facts set forth in the affidavit on which the certiorari was allowed. ” And by the second section thereafter, (§ 183,) it is provided that the justice may be compelled to “ amend such return which compulsory amendment was always treated as so entirely within the power of the party, (on proper application .to the court,) that it was considered his own fault if the return did not, on its face, show that it contained all the proceedings, if showing that were essential to him; especially as, in his affidavit, he was not bound to set forth, and require answer to, the whole *497case; but only “ the substance ” of the proceedings before the justice.
The proceeding by appeal, under the Code, differs essentially from the former proceeding; as is apparent on reading § 360 ; which provides that the court appealed from shall make a return 66 of the testimony, proceedings and judgment.” And this return is made on a mere notice of appeal.
It is true that § 362 provides (as did the Revised Statutes) for compelling “ an amended return ” if the return made be defective.
But in the absence of any such amended return, or with such amended return, the provision of the former section remains. And whenever (with or without one, or any number of amended returns) the return is finally completed, it must be presumed to be in compliance with the law. That law is, that the return contains “ the testimony,” &c.; which beyond all doubt means the whole testimony, &c.; and leaves not the least apology or opportunity for the application of the former rule, above referred to. And it is impossible to retain that rule, under the provision above stated.