The opinion of the court was delivered by

This action was brought before a justice of the peace to recover three penalties for alleged violations of the act to prevent the unlawful use of and willful injury to milk cans, approved April 9th, 1902. The summons was tested December 29th, 1902, and was returnable January 9th, 1903. The writ of certiorari was allowed January 7th and served January 8th.

The subject-matter of this suit was within the jurisdiction of the justice. The act provides that the penalty shall be recovered by an action, to be styled “An action in contract for a penalty,” in any court of this state haying cognizance thereof. The penalties sued for are within the amount to which the jurisdiction given, justices of the peace is limited, and the Justice’s Court had cognizance of the suit. The objections made by the prosecutor are directed to the state of demand. If these objections are valid, we must assume that the justice would have proceeded thereon in accordance with law, if the case had been tried before him. In such a case' as this the writ of certiorari is used as a substitute for the writ of error. It is well settled that in eases where, the writ of *582certiorari serves as a substitute for a writ 'of error, and where the inferior tribunal has jurisdiction, a writ of certiorari will not lie before final judgment below. Hinchman v. Cook, Spenc. 271. The matter is discussed in Mowery v. Camden, 20 Vroom 106. In that case the writ was sustained because the ordinance required proof by affidavit of the violation of its provisions. The affidavit was the foundation of the magistrate’s jurisdiction, and as it failed to show a violation of the ordinance the magistrate was without jurisdiction.

In Farrow v. Springer, 28 Vroom 353, the earlier cases are collected.

In Potter v. Fritz, 25 Vroom 436, a certiorari to a District Court before final judgment was dismissed.

The writ in this case, having been issued before final judgment in the court below, must be dismissed, with costs.

The same judgment must be entered in the second suit between the same parties.