
    *Hosmer against Williams.
    ALBANY,
    Oct. 1827.
    A. certiorari does not lie to remove a feigned issue awarded by a court of cornmon pleas, into the supreme court.
    MOTIO1~ to set aside the certiorari in this cause. A feigned issue was ordered by the court of common pleas of the county of Columbia, on motion of Williams, to try a question between these parties as to alleged fraud in a ear. tam judguient of that court, for about ~1O,OOO, entered by co~fession, in favor of Hosmer against Patterson. The is~ sue was noticed for trial in the 0. P.; but Hosmer sued out and served a certiorari to remove the issue' to this court.
    
      A. Vanderpool,
    in support of the motion, was stopped by the court.
    
      A. L. Jordan and C. Bushnell, contra.
    The only question is, whether this court have jurisdiction of the proceeding sought to be set aside. Its powers continue the same in this respect, except as to amount, as they were under the colonial act of 1691, by which the supreme court was created. (Bradf. ed. Col. Laws, 1794.) This statute declares that any person may commence or remove into the supreme court, any action or suit, the debt or damages in question being upwards of £20. Our constitution found, and adopted this court with its colonial powers. These, it will be seen by the statute cited, are equal to those of the English king’s bench, common pleas and exchequer combined. The common law authority of the king’s bench, independent of any statute declaration, would reach this case. The language of the books is very broad. This court keeps all inferior jurisdictions within the bounds of their authority; and may either remove their proceedings to be determined here, or prohibit their progress below. (3 Bl. Com. 30.) Then, is this an action, suit or proceeding within the' statute, or the language of the author cited ? An action is said to be “ the legal demand of one’s right; ” or “the form of a suit given by law, for *the recovery of that which is one’s due.” The proceeding on a feigned issue is a suit not only in form but in substance ; and governed by the ordinary rules of practice. (Imp. K. B. 487.) On a feigned issue being ordered by chancery, a writ is sued out as the foundation of the proceeding. (Id.) True, it is a fiction invented by the court to try the rights of parties. So is an ejectment. On a feigned issue, we have the fiction of the wager. In ejectment, that of the demise. But the latter action is no less removable on account of being a fiction,
    
      E. Williams, in reply.
    The office of a certiorari is to remove the record in the cause; upon which judgment may be rendered by this court, and a writ of error will lie to the court of errors. An action or suit must exist in which a record may be formed and error brought upon it, to warrant a certiorari. This feigned issue is merely a substitute for the affidavits of the parties, to inform the judgment of the court below. Remove it, and you take away the power of their being informed. You cannot send the issue back. By removing it, then, you destroy its utility. It is like an issue awarded by the court of chancery. The court which awards it keeps a control over it; acting upon the verdict or granting a new trial, according to circumstances. Your certiorari does not bring up the original cause, nor affect it in any way. That remains below; and the 0. P. may proceed in it; or set it aside without regard to what may be done in another court.
   Savage, Ch. J.

It was not without much hesitation that I allowed this certiorari. And after all, the allowance was rather with a view that the opinion of the whole court might be taken, on motion, than from a conviction that the writ will lie in a case like the present. On reflection, we are all clear that it cannot be sustained. A feigned issue is not a suit or action, within the meaning of those words, when used in reference to the jurisdiction of this court upon certiorari or habeas corpus. It is, in truth, merely incidental to the suit below; a part of the proceedings in *the cour'se of a non-enumerated motion there. The complete proceedings on such a motion would not be removable by certiorari; a fortiori, only a part of them. This feigned issue is a mere fiction, as its title imports, adopted to inform the court upon a fact by which they are to be guided in granting or denying an application to set aside one of their judgments. It is not even in name, an action or suit; much less in its properties or effect. The motion must be granted, with costs.

Motion granted.  