#### GEORGE C. DOUGLAS v. RICHARD A. CALDWELL.

Where a suit was brought prior to the adoption of the C. C. P., by a citizen of another State in the Court of Equity of one of the counties of this State against a citizen of this State, and at a term of the Superior Court of the county after the adoption of the O. O. P., a motion was made to refer the issues in the cause to a referee which was ordered and the defendant appealed to the Supreme Court, where the order was held to be erroneous and issues were directed to be made up to be ■tried in the Court below, and the cause was retained in the Supreme Court until the issues should be tried, it was held, that there was not a final hearing or trial of the suit so as to prevent its being removed at the instance and upon the affidavit of the plaintiff to the Circuit Court •of the United States for the District of North Carolina, under the Act of Congress of March 2d, 1867, which provides that a non-resident party in a State Court, shall be entitled to remove it, on mating proper application “ at any time before the final hearing or trial of the suit.”

This was an application made to the Supreme Court at fits present term to remove a cause pending therein to the Circuit Court of the United States for the District of North Carolina. The case is fully stated in the opinion of the •Court.

Blackmer <& McGorkle and J. H. Wilson, for the plaintiff.

Fowle & Badger and Moore & Gatling, for the defendant.

*249Rodman, J.

The plaintiff, a citizen and resident of Georgia, in 1867, filed a bill in the Court of Equity for Rowan county, in which he set forth, that the defendant had been his guardian, and as such had received money and property to a large amount; that soon after he became of age, he had a settlement with his guardian, and was induced by fraud to execute a release, &c., and prays that the release may be set aside, and for an account. The defendant answered denying fraud, &c., to which there was a replication. At Fall Term, 1869, of Rowan Superior Court, on motion of the plaintiff, a reference of the issues in the action was made to a referee, and from that order the defendant appealed to this Court, where the order of reference was held to be erroneous, and issues were directed to be made up as to the validity of the release, to be tried by a jury in the Superior Court of Rowan, and the case was retained in this Court. (64 N. C. R. 372.) The issues have not been tried.

The plaintiff now files in this Court an affidavit, in which he states, that he has reason to believe, and does believe, that from prejudice or local influence he is not able to obtain justice in the State Court; and prays that the case may be removed to the Circuit Court of the U. S. for N. C., in pursuance of the Act of Congress, ratified 2d March, 1867. He tenders a bond, &c.

That Act provides that a non-resident party to a suit in a. State Court, shall be entitled to remove it, on making the proper application, u at any time before the final hearing or trial of the suit.”

The counsel for the defendant, who resists the motion,' referred us to the case of Aherley v. Vilas in the Supreme Gourt of Wisconsin, published in the American Law Register, vol. 8, p. 558. We have read with pleasure the able and learned opinion of Judge Paine. We concur, generally, in his reasoning, and in his conclusion in that case.

In the present case, however, we do not think it can be *250contended that there has been a final hearing. No merits have been decided; nothing has been decided, except a mere question of practice preliminary to an inquiry into the merits.We cannot consider the mere fact that the case is pending in an appellate Court, sufficient to take it out of the Act of Congress, and we cannot see any reason why the motion should not be allowed.

The following order was made:

George C. Douglas

v.

R. A. Caldwell.

The motion for the removal of this cause coming on to be heard upon the affidavit filed and the argument of counsel, it is considered by the Court that the said cause be tranferred to the Circuit Court of the United States for the District of North Carolina to be held, at the City of Raleigh, on the first Monday in June, 1871; and to this end the Clerk of this Court will deliver to the Clerk of the Circuit Court of the' United States all the papers belonging and pertaining to said cause, together with the opinion filed by this Court in said cause, as well as this decree.

Per Curiam.

WILL. B. RODMAN, A. J.