
    *Anderson’s Adm’r v. Lively.
    February, 1835,
    Richmond.
    Supersedeas — Laches — Case at Bar. — Supersedeas awarded by a circuit court to a judgment of a county court, two years after its date, and a super-sedeas bond executed; but the office of clerk of the circuit court being vacant at the time, no supersedeas is issued; a clerk of the circuit court is soon after appointed; ten years after, the plaintiff in error applies for the writ, which the clerk then refuses to issue; and then the circuit court, upon motion of plaintiff in error, awards it; Held, the supersedeas, after such a lapse of time, was improperly awarded, and ought to be quashed,
    Anderson’s executors having recovered a judgment against Lively in the hustings court of Williamsburg, he applied to the judge of the circuit court of James City, within two years after the judgment rendered, for a supersedeas, which was allowed ; and he entered into a supersedeas bond with surety, according to the statute. But, at that time, the office of clerk of the circuit court was vacant, so that the writ of supersedeas could not then be issued. A clerk was appointed within the year following, and the office thenceforward remained full. Yet the plaintiff in error made no application for the writ of super-sedeas, till a lapse of more than ten years from the time when the office of clerk was filled, and more than thirteen years from the date of the judgment; and then the clerk refused to issue the process. Meanwhile, a fieri facias had been sued out on the judgment; and the sheriff returned, that he had levied it on the debtor’s goods, but that the order of the judge allowing the supersedeas being shewn to him, he applied to the agent of, the creditor for a bond to indemnify him for proceeding on the execution, which he refused to give, and thereupon the property was restored to the debtor. About two years after, the plaintiff in error applied to the clerk for the supersedeas, and that officer refused to issue the process ; a motion was made to the circuit *court, to direct the process then to be issued; and the court, on a hearing of both parties, directed the clerk to issue a supersedeas, according to the original order allowing the same. The supersedeas having been issued, and returned executed, the circuit court reversed the judgment of the hustings court; from which judgment an appeal was taken to this court, by Anderson’s administrator de bonis non, against whom, on the death of the executors, the proceedings had been revived in the circuit court.
    Robinson, for the appellee; no counsel for the appellant.
    
      
      Supersedeas — Laches.—The principal case is cited and approved in Ross v. Reid, 8 Gratt. 237; James River & K. Co. v. Littlejohn, 18 Gratt. 70, 75; Williamson v. Gayle, 4 Gratt. 185. See foot-note to Overstreet v. Marshall, 3 Call 192; and foot-note to Williamson v. Gayle, 4 Gratt. 180.
    
   BROCKENBROUGH, J.

The first, and I think, the only question to be considered in this case, is, Whether the supersedeas was properly directed by the circuit court to be issued? The statute says, that no writ of supersedeas shall be granted to any judgment of a court of law, after five years from the time when the judgment shall be made final: 1 Rev. Code, ch. 128, fj 19, p. 492. In Overstreet v. Marshall, 3 Call. 192, it was decided, that the order of the judge or court awarding the writ, was the commencement of the proceedings on the supersedeas, and if that order was within the five years, yet if the supersedeas bond were not given until after the expiration of the five years, so that the writ could not issue till after that lapse of time, yet on the execution of the bond the writ might issue. But the case presented by this record, is different from that. Here, the order was made, and a supersedeas bond immediately executed, in little more than two years after the judgment. But it so happened, that there was no clerk of the court at that time, so that the writ of su-persedeas could not then issue. That vacancy, however, did not continue till the end of the five years. A new clerk was appointed, within a year after the su-persedeas was granted; and *the office appears to have been constantly full ever since. No proper application was made for the emanation of the ,writ till after the lapse of more than fifteen years from the date of the judgment, and nearly twelve years after there was a clerk, who might have issued it. The appellee having failed for so many years to carry the order into effect, it seems to me that he was in no better situation, than if he had then for the first time applied for his supersedeas, which could not then have been granted. I think that, by analogy to the statute of limitations, the appellee ought not to have been allowed to sue out the- writ; that the order was erroneous; and that the judgment should be reversed, with the costs of both the circuit court and this court, and the superse-deas quashed as improvidently issued.

CARR and CABELL, J., concurred.

BROOKE, J.

Though it was decided in Overstreet v. Marshall, that the proceedings on a supersedeas were to be dated from the issuing of the'order allowing it, and if that was within the five years prescribed by the statute, the bond might be given, and the writ issued, after lapse of the five years, X think the delay to proceed on the order allowing the supersedeas, in this case, too great to be admitted. If, after the expiration of five years from the date of the final judgment, the law forbids the granting of the order for a supersedeas, I incline to think the obtaining the order for the su-persedeas should not authorize a delay to proceed, longer than the period prescribed by the statute for the issuing of the order by the court or the judge. In this case, twelve years were permitted 'to elapse, after obtaining the order for the supersedeas, and the execution of the supersedeas bond, before application was made for the writ. The circumstance of there being no clerk of the court for a short portion of the time, cannot be admitted as an excuse *for such a delay; otherwise, after getting the order, and giving the bond, the delay to proceed might be extended to an unlimited period; and the object of the statute, limiting the time of proceeding in such cases, would be defeated. I concur in the opinion, that the judgment be reversed.

TUCKER, P.

It has been decided by this court, that the order of the judge allowing a supersedeas, is to be taken as the commencement of the proceeding in reference to the operation of the statute of limitations. It is not less true, however, that the order for a supersedeas is not a super-sedeas of itself: it is but the declaration of the judge, that it is fit under the circumstances that a supersedeas should issue; and may be recalled by him at any time before it is complied with, if upon consideration he deems it improper or improvident. Ex parte Leicester, 6 Ves. 429; Ex parte Layton, Id. 434. Such being the character of the order, it must be admitted to have been by a liberal construction that it was considered as the commencement of the proceeding, so as to avoid the bar of the statute. In this view of it, however, it is reasonable that it should not be unlimited. The law forbids the emanation of a supersedeas after five years have elapsed from the date of the judgment. The order for the su-persedeas should, therefore, either be construed to imply a compliance within the limited period, or it should impose a limitation. It cannot be within the spirit of the statute, to permit the order to be held up for twelve or fifteen years, and then for the first time to be effectually prosecuted. I am inclined to think, that the fair construction of such an order would require the party to sue out the writ, and execute the bond, at a date anterior to the first term to which it could be made returnable. And if this be not done, then a new order should be obtained. If, indeed, as in this case, there was no clerk, then, as the party was not in default, *it would be competent to direct it to issue nunc pro tunc, provided the motion was addressed to the court in due season. But it would be a gross abuse to permit the party, at any length of time however remote, to have his supersedeas, after having so long held up the order of the judge. Admitting that order to have been the commencement of the proceeding, yet upon all the analogies of the law, it can only avoid the statute by being duly prosecuted. A process discontinued or abandoned has not that effect. Again, the clerk, in this case, having refused to execute the order, considering it abandoned, the motion, I think, must be considered as addressed to the discretion of the court. If so, the motion, after such a lapse of time, should have been denied, for, surely, the party cannot be in a better situation from his neglect. Now, if he had sued out his supersedeas, he must have brought up the record within two terms or his supersedeas would have been dismissed. As the case actually stands, the record is not brought up for more than thirteen years; the cause is not even docketed, for it could not be docketed until there was a writ; and though a bond was given, yet it was obviously ineffectual and vain, since it bound the party to prosecute a writ which had no existence. By exhibiting the order of the judge, he prevailed on the sheriff to restore the property; and having got it, he is then satisfied, and takes no farther steps in prosecuting his supersedeas. These facts certainly furnish no title to the exercise of the discretion of the court in his favour. I am of opinion, therefore, that the order ought not to have been made; and that the judgment should be reversed, and the su-persedeas quashed, as improvidently issued.

Judgment reversed.  