
    Clarke v. Conn.
    April, 1810.
    Court off Appeals — Jurisdiction—Consent—Acquiescence — Eifect.—Neither consent, nor Ions' acquiescence of parties can give the Court of Appeals j uriscliction. An appeal, therefore, (having been improvidently granted,) was dismissed on motion, five years after it was entered on the docket.
    In this case a decree was rendered in the Superior Court of Chancery for the Richmond District, March 16, 1804, dismissing the bill with costs; from which decree the plaintiff prayed an appeal, which was allowed him “on his entering into bond with sufficient security in the Clerk’s office of the said Court, for the prosecution thereof, on or before the first day of the next term.” This he failed to do; and, the 6th of October following, on his motion by Counsel, and for reasons appearing to the Court, further time, until the ensuing first day of February, was allowed him for giving the said bond and security; which he did accordingly, as certified by the Clerk of the Court of Chancery.
    A copy of the record was sent to the Court of Appeals, and the cause entered on the docket, April, 1805.
    *At March term, 1810, a motion was made by Wickham, for the appellee, to dismiss the appeal, as improvidently granted; the power of the Chancellor over it having ceased on the first day of the term ensuing his final decree; according to the case of Anderson v. Anderson, 2 Call, 180.
    Randolph, contra,
    insisted that this objection was now too late, nearly five years having elapsed since the appeal was docketed. The appellee having acquiesced so long in the bond given by the appellant, must be considered as consenting to receive it, as executed in due time.
    JUDGE TUCKER observed, that consent could not give this Court jurisdiction; and referred to M’Call v. Peachy, 1 Call, 55.
    Wednesday, March 28th.
    
      
      Jurisdiction — Consent.—It seems well settled that when a court has not juris diction of the subject-matter, the consent of parties cannot give it. M’Carty v. Gibson, 5 Gratt. 329, citing the principal case and M’Call v. Peachy, 1 Call 55.
      Por other cases in point, see foot-note to M’Call v. Peachy, 1 Call 55; monographic note on “Jurisdiction” appended to Phippen v. Durham. 8 Gratt. 457. On the subject of jurisdiction, the principal case was also cited in Todd v. Gates, 20 W. Va. 470.
      Appeals — Dismissal as Improvidently Allowed— Costs. — As authority for the proposition that wherever an appeal is dismissed as improvidently allowed, or a supersedeas quashed as improvidently awarded, the court has always refused to give costs to the party prevailing. Tucker, P., in a dissenting opinion in Ayres v. Lewellin, 3 Leigh 616, citing, in support of the proposition, the principal case; Hepburn v. Lewis, 2 Call 497; Lewis v. Long, 3 Munf. 136; Hutchinson v. Kellam. 3 Munf. 202; Skipwith v. Young, 5 Munf. 276; Rootes v. Holliday, 4 Munf. 323; Miller v. Blannerhassett, 5 Munf. 197; Thomson v. Evans, 6 Munt. 397; Ashby v. Kiger, 3 Rand. 165. For further information on this subject, see monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 2 Rob. 263; monographic note on “Costs” appended to Jones v. Tatum, 19 Gratt. 720.
    
   The Judges pronounced their opinions unanimously, that it was a hard case; but the appeal must be dismissed.

On the last day of that term, this order of dismission was set aside, and the case further considered.

Tuesday, May 22d. The Judges again pronounced their opinions.

JUDGE TUCKER.

The question arises upon that part of the chancery law, which authorizes the Chancellor to grant an appeal in vacation next after the term when the decree shall have been rendered.

This is a question of jurisdiction, not of discretion. All the powers of this Court are statutory; it has no claim whatever to power from any other source; neither custom, prescription, long usage, or precedent, have any pretensions here, independent of statutory provisions. This has been repeatedly acknowledged in the cases of M’Call v. Peachy, Bedinger v. the Commonwealth, and Stras v. the Commonwealth. The time and manner of 162 proceeding in order to “give this Court cognisance of the cause, is, I conceive, as essential as the nature, or amount of the matter in controversy. If the party suffers it to élapse without proceeding as the law directs, he is as much concluded thereby, as he would be by a verdict for 99 dollars 19 cents damages, instead of 100 dollars, which is the lowest sum of which this Court can take cognisance. Until the Court has legal possession of any cause, although it be upon their docket, it has no power over it, but to dismiss it. Jurisdiction must in all cases precede discretion. In the present case, I conceive, we have not the former, and therefore that we cannot exercise the latter. My opinion therefore is, that the order of dismission be reinstated.

JUDGES ROANE and EEEMING were of the same opinion.

The order for dismission was therefore reinstated. 
      
       1 Rev. Code, c. 64, s. 59.
     