Parks vs. Goodwin & Hand. ings. Situated as this cause was when the decree in bankruptcy was granted, it would seem to me the course pursued was the appropriate one. The cause having been argued and submitted, it was proper for the court to give judgment, reserving to the bankrupt the right of availing himself of the benefit of his discharge when an attempt should be made to enforce the payment of the judgment by execution. It is very true that the judgment in this case was a debt created subsequent to the discharge of the bankrupt; but the debt was founded upon a judgment from which the defendant in the court below had been discharged; the judgment had, in contemplation of law, been paid and satisfied. Suppose, after the cause had been argued and *submitted, the plaintiff in error had [37*] paid and satisfied the judgment below, and obtained a discharge from the same, this court would not hesitate to direct a perpetual stay of execution, although the judgment below was affirmed; and yet, the debt created by the judgment rendered in this court had not in fact been paid, but the judg ment in the court below, upon which the judgment of this court is based. This is but the exercise of an equitable power over its own judgments, which courts of law possess. The case of Bostwick v. Dodge, 2 Doug. 331, decided by this court in 1846, is an authority to show that this power may be exercised in a proper case. Dodge had obtained a judgment against Bostwick in the circuit court; Bostwick removed the case to the supreme court by writ of error. His counsel not having received advices from his client, proceed to argue the cause in the supreme court upon the issue made in that court. The judgment below was affirmed, when Bostwick applied for an order to stay the execution, upon the ground that he had been discharged in bankruptcy after the suing out of the writ of error, and before errors were assigned and the case argued, and that he did not think it necessary to take any further steps in the case, or advise further with his counsel. We think if the court could rightfully stay the process in that case, it may in the case before us. Motion granted. Root vs. Barnes. Roor et al. vs. BARNES. A certiorari will not lie to remove proceedings had before a justice of the peace, under R. S. 1838, to determine whether a mill pond is unhealthful and productive of disease by reason of the decay of standing, lodged, or fallen timber. -- NOTE. The writ of certiorari is a constitutional remedy, and can not be taken away by legislature, where applicable. Specht v. Detroit, 20 Mich. 168. Held applicable though the plaintiff have another remedy by appeal in a case where private property has been condemned for an alley, without proper notice of the purpose for which jury would be called. Ibid. See also J. & C. R. R. Co. v. Barrows, 24 Ill. 563; Ottawa v. C. & R. I. R. R. Co., 25 id. 43. Writ should be dismissed where improvi dently issued, as in summary proceedings to recover possession of lands, unless equitable circumstances justify the resort to this writ in lieu of an appeal. Farrell v. Taylor, 12 Mich., 113, and cases there cited; but see Rowe . Rowe, 28 id. 353; Thompson v. S. D. No. 6, 25 id., 483 Certiorari from supreme court lies to remove bastardy proceedings in county court, although the ordinary judgments of a county court may be removed to circuit court. Perkins v. Supt's of Poor of Lapeer Co., 1 id. 504. Judgments in extraordinary and special proceedings, before justices of the peace, removable not to circuit but to supreme court. Warner v. Porter, 2 Doug. 358. Lies in circuit court to review order of justice of the peace in bastardy case. Cross v. People, 10 Mich. 24. Lies instead of mandamus to review error of circuit court in permitting amended affi. davit in attachment case to be filed, an attachment being a special proceeding not according to course of common law. People v. Judges of Branch Circuit, 1 Doug. 319. And to review an error of the cir cuit court in ordering execution against a stay surety on a justice's judgment under act of 1846, Jerome v. Williams, 13 Mich. 522, the proceeding being special, and not according to common law; but not to review error of circuit court in granting leave to appear from probate court out of ti.ne. Palms v. Campau, 11 id. 509. Rests in sound discretion, notwithstanding statute requiring it to be issued within two years. Matter of Landis, 9 id., 324. That the statute gives an appeal to circuit court, on question of damages in proceedings to open streets, will not prevent certiorari from this court on other questions People v. Brighton, 20 Mich. 57. May be quashed for laches. Matter of Landis, 9 id. 324; Harbaugh v. Martin, 30 id. 234. Such motion must be promptly made. Matter of Robinson, 6 id., 137. Lies only to review questions of law, including the question whether any competent evidence exists on which to base the action of the court below. Jackson v. People, 9 Mich. 111; Hig. by v. Lant, 3 id., 612; Hyde v. Nelson, 11 id. 353; Cirobbe v. Morse, 8 id Root vs. Barnes. CERTIORARI to a justice of the peace to remove proceedings before him, under ch. 8, tit. 4, part 3, R. S. 1838. Farrand & Higby, for plaintiffs in error. D. Johnson, for defendant in error. 424; Berry v. Lowe, 10 id. 9; Linn v. Roberts, 15 id. 448; McGraw . Schwab, 23 id. 13. Must be directed to the tribunal whose decision is to be reviewed, or will be dismissed. Goodrich v. Com'rs of Highways of Lima, 1 Mich. 385; Crawford v, Scio, 22 id. 405; French v. Com'rs of Highways of Springwells, 12 id. 267; Milw. Co. v. Schubel. 29 Wis. 444; Rob. erts v. High. Com. of Cottrellville, 24 Mich. 182. Errors not pointed out in court below will not be reviewed on. Lee v. Hardgrave, 3 id. 77; Hinman v. Eakins, 26 id. 80; Taylor v. Wilkinson, 22 Wis. 40. As to assignments of error on, when specific. Fowler v. Det. & Milw. R. R. Co., 7 Mich. 79; Davison v. Otis, 24 id. 23; Building Co. v. Thompson, 32 id. 293. Whether certiorari is the proper remedy will only be considered on the hearing, not on motion to dismiss; will not lie to review questions of discretion. Midland Sup'rs v. Auditor General, 27 id. 165. Circuit courts may, on certiorari, review proceedings of inferior courts on attachment. Thompson v. School Dist., 28 id., 283; Taylor v. St. Clair Judge, 32 id. 95; Patterson v. Goodrich, 31 id. 225; but see Mendelsohn v. Smith, 27 id. 2. When statutory remedy is gone on attachment proceedings in justice's court, a common law certiorari may, in proper cases, issue from supreme court. Withington v. Southworth, 26 id. 381. Technical questions of practice not considered on. Burnham v. Van Gilder, 34 id. 246. In Wisconsin, supreme court issues certiorari only to circuit court, not to justice's court. Judson v. Marshall, Bur. 171 (1841), overruled in May v. Keep, 1 Chand. 285; Hurlbut v. Wilcox, 19 Wis. 419. Is a constitutional remedy in supreme court. In re S. M. Booth, 3 id. 1. Will not review pro ceedings in circuit court in chancery as by guardian to sell real estate. In re Haney, 14 id. 417. Supreme court will reverse a void judgment on. Combs . Dunlap, 19 id. 591. Lies at common law when a circuit judge appoints commissioners without authority. Western Union R. R. Co. v. Dickson, 30 id. 389. Applies especially to jurisdictional defects. Owens v. State, 27 id. 456; State v. Huck, 29 id. 202. Circuit court on, should either affirm or reverse the justice's judgment, and not dismiss the writ. McNamara o. Spees, 25 id. 539. Does not bring up evidence, but only the record. Baizer v. Lasch, 28 id. 268. Brings up all proceedings from the beginning. State ex rel. McCune v. Goodwin, 24 id. 236. -In Illinois, lies for excess of jurisdiction, and where appeal is not al lowed. People ex rel. Williamson, 13 Ill. 660; C. & R. I. R. R. Co. v. Whipple, 22 id. 105; Rue v. City, 66 id. 256. Not for errors of fact or law. 14 id. 381; 22 id. 333; 18 id. 324. It does not bring up the evidence, but only jurisdiction and regularity. C. & R. I. R. R. Co. v. Whipple, 22 id. 108; Sonora v. Carthage, 27 id. 140. Judgment complained of, on application [38*] Root vs. Barnes. *By the Court, MILES, J. The defendant in error, Edward M. Barnes, made a complaint in writing to P. C. Lawrence, Esq., a justice of the peace of the county of Jackson, that the plaintiffs in error were the proprietors and occupants of a mill situated in the township of Leoni, in that county; that the pond to the mill was unhealthful and productive of diseases by reason of the decay of a large quantity of standing, lodged and fallen timber within the bounds of the mill pond; and that the pond or a large portion of it was situated in said township. R. S. 1838, sec. 6, p. 535. Upon this complaint being lodged with the justice, he proceeded to issue a notice, and to impanel a jury for the trial of the same. Two of the persons named in the complaint appeared and contested the matter before the justice, and took various exceptions to the regularity of the proceedings, which being overruled by the justice, they have assigned for error in this court, upon a removal of the proceedings in the case by certiorari. The statute under which the proceedings in the case were had, R. S. 1838, p. 535, sec. 6, provides that "it shall be lawful for any resident of a township in which a mill pond is situated, to made a complaint in writing against the proprietors or occupants of such mill to any justice of the peace in such township, that such mill pond is unhealthful and productive of diseases by reason of the decay of the standing, lodged or fallen timber, whereupon the said justice shall issue a venire facias to the sheriff or any constable of the county, to summon twelve to remove cause to circuit court, must be shown not to have resulted from negligence, and must be shown to be unjust in petition. Cushman ♥. Rice, 1 Scam. 565; Murray v. Murphy, 16 Ill. 275; Russell v. Pickering, 17 id. 31; Clifford v. Waldrop, 16 id. 275; Cook v. Hoyt, 13 id. 144; Lord v. Burke, 4 Gilm. 363; Gallimore v. Dazy, 12 Ill. 143; Stout v. Slattery, id. 162; Harrison v. Chipp, 25 id. 575; Davis v. Randall, 26 id. 243. May be dismissed on motion if petition fails to show why appeal was not taken. Doan v. Sibbitt, 61 id. 485. What is due diligence on. Otten. Lehr, 68 id. 74. Facts amounting to, must be shown by the petition, not merely alleged as a conclusion of the affiant. First Nat. Bank of Chicago. Beresford, 73 id, 391. Root vs. Barnes. disinterested men, who shall be freeholders and residents of the county, and said officer shall, within a reasonable time, summon the jurors to appear at the time and place mentioned in said venire, for the trial of such complaint. Provided, that before the venire shall issue, satisfactory security for the defendant's costs shall be given to such justice: And provided also, that six days at least before the time of issuing such venire, a written notice of said complaint being made, signed by the justice, shall be served on the proprietors or occupants of such mill, so that they may be present at the time of selecting the jury; and such jury shall be selected by writing down the names of twice the number wanted, and each party may strike off six, and the names of the remaining twelve shall be embodied in the venire to try the cause. The next section provides, that "if, upon the trial of such complaint, *the jury, after being sworn or affirmed [39*] to try the matter of such complaint, and after hearing the testimony, if any be offered, shall determine said millpond unhealthful or productive of disease, and that it arises from the decay of standing, lodged or fallen timber in said pond the justice shall record such determination on record, and if thereafter the proprietor or proprietors, occupant or occupants, shall neglect or refuse to remove such standing, lodged or fallen timber from such pond, it shall be lawful for any householder resident of the township to prosecute such proprietors or occupants, before any justice of the peace of such county, in an action of debt, and such householder is authorized to give in evidence the determination of the jury aforesaid, and the evidence thus produced, judgment shall be entered for a sum not exceeding the penalty named in the fifth section of this chapter." upon The fifth section referred to makes it the duty of all proprietors of mills within this state to clear their mill ponds of all standing, fallen or lodged timber, upon complaint made to them by any justice of the peace of the township where the mill is situated, that the mill pond has been determined unhealthful and productive of diseases in the manner before |