By the Court,
Cole, J.This is unquestionably what would be considered an equity case under the old practice. It has been brought to this court by a writ of error. A motion has been made to dismiss the writ, on the ground that it does not lie in an equity case. We think the writ improvidently issued, and that the motion must prevail. In the case of Delaplaine et al. vs. The City of Madison, 7 Wis.,407, we held that the Code did not enlarge the functions of a writ of error. It would undoubtedly have been abolished by that enactment, had it not been for the provision of the constitution which declared that it should never be prohibited. This is very obvious from the fact that it was provided that it should not be necessary to issue a writ of error to bring up any judgment or order for review before the supreme court, but that the same might be reviewed by a proceeding denominated an appeal. Code, sec. 230; R S. 1858, chap. 139, sec. 1. This clearly indicates the intention to do away entirely with the necessity of suing out a writ of error in any case, and is wholly inconsistent with the idea that the office of a writ of error was extended by this legislation.
There can be no doubt that under the old practice, the *444aPPr0Pr^'e mo(^e of removing equity cases to tbe appellate court was by an appeal, and not by a writ of error. The San Pedro, 2 Wheaton, 132; 3 Daniell’s Chan. Prac., p. 1634, et seq.; McCollum vs. Eager, 2 How. (U. S.), 61; 2 Daniell’s Chan. Prac., 1220; Maddock’s Ch. Pr., 573.
Now, since tbe Code bas not extended tbe office of a writ of error, it is very manifest that tbe parties bave not adopted a proper mode of removing tbis case to this court.
Motion to dismiss tbe writ of error sustained.