
    *Overstreet v. Marshall and Others.
    [April Term, 1802.]
    Supersedeas — Statute of Limitations. — The Judge’s order for a writ of supersedeas, is the true commencement of the proceeding: here; and therefore, if that he within five years from the date of the judgment, although the writ is not taken out till the five years have elapsed, it will he in time.
    Overstreet, obtained an order from a Judge of this Court for a writ of superse-deas to a judgment of the District Court, within five years from the date of the judgment, which order he lodged with the Clerk of this Court; who delivered him a super-sedeas bond to have executed; but he being unable to obtain security before the end of five years from the date of the judgment, the Clerk of this Court doubted, whether he could issue the writ of supersedeas, without further directions from the Court.
    Wickham and Randolph, for the plaintiff.
    One question is, whether the five years mentioned in the District Court law, R. C. p. 88, applies to this Court? But if it does, still the order for tl^e 'supersedeas ought to be considered as the commencement of the suit here; and, therefore, the application should relate to that period, and not to the date of the writ. According to which idea, the application was made in time; and then the five years are no bar.
    
      
      Supersedeas — Statute of Limitations. — In Williamson v. Gayle, 4 Gratt. 185, the principal case is discussed as follows: “In Overstreet v. Marshall, 3 Call 192, it was decided, that although the supersedeas did not issue until after five years, yet it was in time, because the order of the judge awarding it, was within five years. The authority of this case has been frequently recognized since; and the principle has been carried further: for in Pugh v. Jones. 6 Leigh 299, it was held, that although there was no order allowing the writ within five years, yet as there was a petition, which had not been acted on by the court, the limitation of the statute did not apply. Judge Tucker, in dissenting from the majority, recognized the authority of Overstreet v. Marshall, as good law; for he says, ‘if the order was made within five years, the writ was granted within five years, since the order itself is the grant of the writ; but here there is no order, there is only a petition.’ In Anderson v. Lively, 6 Leigh 77, it was merely decided that owing to the great laches of the party in takin g out his supersedeas, he should not be allowed to sue it out after such great delay. But all the judges who gave opinions, recognized the authority of Overstreet v. Marshall, that the order of the judge awarding the writ was the commencement of the proceedings.” The principal case is cited with approval in Pugh v. Jones, 6 Leigh 313, 314, but though approved, it is distinguished in Anderson v. Lively, 6 Leigh 78, 79; in the dissenting opinion of President Tucker in Pugh v. Jones, 6 Leigh 314, and in James River & K. Co. v. Littlejohn, 18 Gratt. 69. See the principal case cited in James River & K. Co. v. Littlejohn, 18 Gratt. 74; and footnote to Williamson v. Gayle, 4 Gratt. 180.
      See Wyatt v. Morris, 2 W. Va. 575.
    
   ROANE, Judge.

It has been decided, that the five years apply to writs of super-sedeas from this Court, as well as from the District Courts. Com. v. Gaskins, 1 Call 194. But I think the order for the writ is the true period of the commencement; and it ought to be so: For, necessity’ requires that time should be allowed for giving the bond; and accordingly in practice, it is actually taken for that purpose. But, if the order for the commencement was not to be considered as the true commencement of the suit, if the application should be made but a little before the five *years had expired, the plaintiff, although his application was seasonable, might not be able to give his bond, and obtain the writ before the expiration of the five years ; and therefore, would be barred, although he had actually commenced his proceedings in time. I think, therefore, that the writ may issue now.

ELEMING, Judge.

As the appellee has not been prevented from making his money during all this time, I think no inconvenience to him will follow from the issuing of the writ at this date. This reflection removes a considerable objection; and therefore, I have the less difficulty in considering the order as the true commencement of the proceedings here.

LYONS, Judge.

There ought to be some restriction in these matters. A time for giving the bond ought to be fixed. But the opinion of the Court is, that the writ should toe issue.

Writ issued.  