
    Thomas B. Littlejohn v. Lewis Williams, Ex’r.
    
    An equity case cannot be removed to the Supreme Court, under the act of 1818, fRev. ch. 962) when it is only set for argument upon a plea.— In such ease, it can come up no otherwise than by appeal.
    The bill was filed in Rowan against Joseph Williams, the testator of the defendant, who died in 1817, when the suit abated. A hill of revivor was filed in 1829 against the present defendant, who pleaded in bar of. it. This plea was set down for argument, and in this stage of the cause, it was, by consent, removed to this court.
    
      Oevereux, who was for the plaintiff,
    suggested that the cause was improperly brought to this court.
    
      JYask, for the defendant.
   RuevIN, Chief-Justice.

The court has not jurisdiction of a case in the situation of this. The act of 1818 provides for the removal of causes in equity to the Supreme Court in two cases — the one after a decision in the Superior Court,by appeal therefrom — the other before a decision, but not until the cause shall have been set down for hearing. These latter words and the context imply that no case is to be brought here, until it shall have reached that stage, in which it may be heard upon the hill, answer and proofs, and finally disposed of in this court, without the necessity of sending it back to be proceeded on for any purpose in the Superior Court.— Accordingly, many cases have been returned without any decree litre, which came up while standing on a demurrer or plea — for upon overruling them, the party is then put to answer, which cannot be done here. If the. demurrer or plea be allowed in the Superior Court, and the bill thereupon dismissed, the complainant may then appeal within the act of 1818, because the decree is final, and if reversed here, the case is sent back for further proceedings below. And under the act of 1831, there may now, by leave of the Superior Court, be an appeal from a decree overruling the demurrer or plea, which does not arrest further progress in the cause in the court below. But unless upon appeal of the one kind or the other, no case can be brought here until it shall have been set for hearing on the merits. This case must therefore be remanded.

Per Curiam. — Remand the cask.  