
    *Pugh’s Ex’or v. Jones.
    April, 1835,
    Richmond.
    (Absent Bbockenbbough, J.)
    Executors and Administrators — Personal Judgment— Appeal — Appeal Bond. — in an action against an executor, judgment is entered against him personally, instead of de bonis testatoris; though the judgment be plainly erroneous, yet if the executor pray an appeal or supersedeas, it can only be allowed him upon his giving an appeal bond with surety.
    Supersedeas — Dismissal— Laches. — A supersedeas, is allowed by this court, without requiring a supersedeas bond, when one ought to have been required, and the cause is docketed without obj ection; this is not good cause to dismiss the super-sedeas, on motion made after lapse of six years-from the time of awarding it.
    Same — Statute of Limitations — Case at Bar —Petition is presented to this court, praying writs of super-sedeas to two distinct final orders of a circuit court, in one cause; and the court allows the supersedeas to one of the orders, without any notice of the prayer for the supersedeas to the other, though it is plainly erroneous; Held. the petitioner had'a right to the judgment of the court, on both the prayers of his petition; and as the court omitted to give judgment on one of them, it is not too late to award the superse-deas, after five years, the limitation to the writ, has elapsed, the omission having been owing to the inadvertence of the court, not to the fault of the petitioner; dissentiente Tucker, P.
    Foreign Executors — Jurisdiction against — Quaere.— Whether a North Carolina executor being in Virginia, can be sued here for a debt of his testator?
    
      Assumpsit, in the county court of Meck-lenburg, by James Jones against Robert Jones executor of EJaton Pugh, upon promises of the testator. The defendant pleaded in abatement to the jurisdiction, that the cause of action arose in the county of Northampton, North Carolina, and not in Meck-lenburg, Virginia, and so not within the jurisdiction of the court, and that his testator never resided in Mecklenburg, or within the jurisdiction of the court, and no process was ever sued out against the testator in his lifetime or the defendant since his death, in North Carolina, where they both resided. The plaintiff ^demurred to the plea, and the court sustained the demurrer. The defendant then pleaded the general issue.
    A long litigation ensued. There were several trials without effect, the jury not agreeing in a verdict. The cause was then referred to arbitrators, and sto'od upon the order of reference for several years. At length, the order of reference was set aside, and the cause continued for trial at a future term; and at the same term, after the continuance was entered, the defendant offered a new plea in bar, “that he had never taken administration of his testator Pugh’s estate, and was not executor, in Virginia.” The court refused to admit this plea; to which the defendant filed a bill of exceptions, stating a history of the proceedings; and then stating further, that ths cause had been so long pending in that court, that if an action were now brought by the plaintiff against the defendant for the same cause, in North Carolina, where the defendant resided, it would be barred by the statute of limitations of that state; that the defendant had consented to refer the cause to arbitrators, by submission in writing signed by himself as executor of Pugh; and that he had, as executor of Pugh, brought a suit against the plaintiff in the circuit court of Mecklenburg ; and, therefore, the court rejected the plea; to which the defendant excepted.
    Upon the trial of the general issue, at a subsequent term, the defendant’s counsel moved the court to instruct the jury, that if it should find that the defendant never qualified as executor of Pugh, in Virginia, the plaintiff could not maintain this action against him in that character; which instruction the court refused to give, and the defendant excepted.
    The jury found a verdict for the plaintiff for 312 dollars with interest &c. The court, on the motion of the defendant, granted a new trial upon payment of costs. At the next term, the court, on the plaintiff’s motion, *set aside the order for the new trial, because the costs had not been paid; and then proceeded to enter judgment on the verdict, against the defendant, generally, not to be levied de bonis testatoris. Prom this judgment, the defendant prayed an appeal to the circuit court, which the county court allowed him, without requiring bond and security for prosecuting the appeal.
    At September term 1828 of the circuit court, a motion was made by the appellee, to dismiss the appeal, because it was improperly allowed by the county court without requiring the appellant to give an appeal bond, according to law; and the appeal was, for that reason, dismissed. Pugh’s executor then moved the circuit court (ore tenus) to allow him a supersedeas to the judgment of the county court; which motion the circuit court overruled.
    In October 1828, Pugh’s executor presented a petition to this court, praying' writs of supersedeas to the orders of the circuit court, one to that whereby the appeal allowed him by the county court was dismissed, and another to lhat denying him the supersedeas he asked to the judgment of the county court. This court, as it appeared by the entry on the order book, allowed the supersedeas as to the order of the circuit court dismissing the appeal, and this without requiring a supersedeas bond; but it said nothing as to the order of the circuit court, denying the supersedeas. This omission, whether intentional or inadvertent, was at first overlooked, and the cause was argued as if the supersedeas had been allowed to both the orders of the circuit court.
    In the argument, Johnson for the plaintiff in error, shewed, that the judgment of the county court was clearly erroneous, in being rendered against the defendant executor of Pugh, generally, instead of being de bonis testatoris; and that, therefore, the circuit circuit court erred in refusing the supersedeas to the judgment of the *county court. And Stanard, for the defendant in error, maintained, that the county court erred in allowing an appeal from its judgment, without requiring an appeal bond, since the judgment being against the executor de bonis propriis, whether it was right or wrong, the court could not allow an appeal from it, without requiring an appeal bond; and, therefore, that the order of the circuit court dismissing the appeal was right. And he insisted, that the supersedeas allowed by this court, likewise, ought now to be dismissed, as having been improvidently awarded, without requiring a supersedeas bond. But the main point of debate at the bar, was not decided by the court: namely, whether, supposing the special plea in bar offered by the defendant and rejected by the county court, not a simple plea of ne unques executor, but (as it was certainly intended) a plea that the defendant, being an executor duly qualified in North Carolina, had never qualified in Virginia, that plea was a good defence to the action? in other words, whether an action will He in Virginia, for a debt of the testator, against the executor qualified in a court of probat of another state?
    
      
      Executors and Administrators — Personal Judgment. - A personal judgment or decree against an executor or administrator, or administrator de bonis non, who is sued in his representative character only, is fatally erroneous. Jones v. Reid, 12 W. Va. 370, citing Spotswood v. Price, 3 H. & M. 123; Humphreys v. West, 3 Rand. 516; Pugh v. Jones, 6 Leigh 299; Wills v. Dunn, 5 Gratt. 384. See monographic note on “Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Appeal by Executors — When Appeal Bond Required, and When Not, — See foot-note to M’Cauley v. Griffin, 4 Gratt. 9. The principal case is cited and approved in Erskine v. Henry, 6 Leigh 382. See monographic note on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
      Appeal — Appeal Bond — Motion to Dismiss — Laches— Waiver. — See foot-note to Johnston v. Syme, 3 Call 523. The principal case is cited and approved in Va. P. & M. Ins. Co. v. New York, etc., Co., 95 Va. 517, 28 S. E. Rep. 888. See monographic note on “'Appeal and Error” appended to Hill v. Salem and Pepper’s Ferry Turnpike Co., 1 Rob. 263.
    
    
      
      Supersedeas — Statute of Limitations. — See foot-note to Overstreet v. Marshall, 3 Call 192. The principal case is cited and approved in Williamson v. Gayle, 4 Gratt. 185; James River & K. Co. v. Littlejohn, 18 Gratt. 74.
    
    
      
       Foreign Executor — Jurisdiction against. — The principal case is cited in Tunstall v. Pollard, 11 Leigh 25. In that case, Tucker, P., delivering the opinion of the court, said: “I am of the opinion, that an executor who has qualified and received assets in a foreign country, and has brought them into this jurisdiction', is liable to be sued and to be compelled to account here, although he never has qualified as executor In Virginia, and although he may have received no assets here.” See monographic note on '‘Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   CARR, J.

We are to say, whether the circuit court erred, either in dismissing the appeal allowed by the county court, or in refusing the supersedeas asked for? As to the first, I think there was no error. The law is general and positive, that before granting an appeal the party praying it shall give bond and security &c. Nor is it in contravention of this law, that executors or administrators, against whom there is a judgment, are permitted to appeal without giving bond. This is allowed, because they have already given a general bond with security, which will cover the appeal: but this exception extends only to those cases which will be covered by the general bond; and the case before us is clearly not of that class. With respect to the motion for the ^supersedeas, it will be observed, that it was made after the dismissal of the appeal, and before any appeal was taken from that order. We see no petition, nor certificate of counsel, which the statute requires. But these, I presume, were waived by the court, as the motion was in open court, and on hearing of counsel on both sides. Such hearing would certainly put the court as fully in possession of the grounds on which the motion rested, and the opinion of counsel, as a petition and certificate. And the question is, ought the court to have granted the supersedeas? In other words, had the county court erred in its judgment? It is most clear, that it had : it had given a personal judgment against a defendant, who was declared against as executor, and had pleaded as executor; the sole issue being whether his testator had assumed. This was palpably erroneous, mischievous and oppressive. Upon this ground, then, I am for reversing the judgment of the circuit court, and sending the cause back, with directions to that court to award a supersedeas.

With respect to the plea of never executor in Virginia, I incline to think the county court ought to have received it, as it was offered (though late) after a continuance of the cause had been ordered, and could not therefore cause delay; but I wish it distinctly understood, that I mean to give no opinion as to the soundness, propriety, or effect of that plea. This question would properly have arisen after the plea was in court.

CABELL, J.

The judgment of the county court was unquestionably erroneous, in being against the executor personally; and it was consequently erroneous in the circuit court to refuse a supersedeas. On this ground, without deciding the other interesting questions raised in the argument, I am of opinion that the judgment of the circuit court should be reversed, and a super-sedeas to the judgment of the county court directed.

*BROOKE, J., concurred.

TUCKER, P.

The supersedeas allowed by this court, in this case, was allowed without security being required for its prosecution; and it is contended by the counsel for title appellee, that it should be dismissed as improvidently awarded for want of such requisition I do not think so. Whether security should have been required or not, it is now too late to make the objection. The appeal has been depending for more than 'six years. It was allowed by the court, the question as to security being distinctly presented, and the court being of opinion, that it should be dispensed with. Had the appellee chosen to question this opinion, he should have done so at an early day, when a rule might have been made upon the party to give the requisite security, if directed by the court. To dismiss the supersedeas now, as irregular, would be grossly injurious to the party, as the lapse of time would prevent the allowance of another supersedeas.' Pursuing the principles, which seem to have governed this court in Jackson’s adm’x v. Henderson, 3 Leigh 196; Syme v. Johnston, 3 Call 523, and Brown v. Matthews, 1 Rand. 462. I am of opinion, that this supersedeas should not be dismissed.

The judgment of the circuit court to which the supersedeas was granted by this court, is an order of the circuit court, dismissing an appeal allowed by the county court, alleged to be irregular, because an appeal bond with surety was not required according to law, for its prosecution. The suit was instituted against .the appellant as executor of Pugh, and of course the judgment ought to have been against him, in his ex-ecutorial, not in his individual, character; but it was rendered not against the estate of Pugh, but against the executor, personally: and the question is, whether in appealing from this judgment, the appellant ought to have been held to security? The statute, 1 Rev. Code, ch. 69, 59, p. 239, provides, that “before granting any appeal, the party praying the same, shall enter into bond with sufficient security, in a penalty to be fixed by the court or judge granting the same, with condition to pay the amount of the recovery, and all costs and damages awarded in case the judgment be affirmed.” Here, then, is an express legislative enactment, which requires security. We cannot dispense with the law. Is there an established and legitimate exception to the rule? There is one, and only one. It is the case of executors or administrators, who are not bound to give security on an appeal, because they give it when they undertake the administration of the estate of their testator or intestate. Sadler’s ex’ors v. Green, 1 Hen. & Munf. 26. The exception has been established and allowed, because, in these cases, the appellees airead}' have the security contemplated by the law. The courts have not undertaken to dispense with the law, which no court has power to do; but they have very fairly considered the object of the statute attained in those cases where executors or administrators are appellants, because their sureties are responsible for the recovery. But where that is not the case, where the sureties in the executor’s bond are not responsible, where the judgment is such that in case of the insolvency of the executor it cannot be enforced against his sureties, the party appealing must give an appeal bond, or the statute will be broken, both in its spirit and its letter. Hence, where a judgment is against the executor personally, he must in all cases, I conceive, give security upon an appeal; and even where that judgment in erroneously so given, the consequence is still the same. Éor, however gross the error of the inferiour court, in any case, the party grieved must yet submit to it, unless he can and will give security on an appeal: and if the judgment is against him personally, whether rightfully or not, the sureties in the administration bond cannot be charged with the debt. *Thus, in the case before us, the judgment is rendered not against the estate of Pugh, as it ought to have been, but it is against the executor himself. But an action of devastavit will not lie against the executor until there has been a previous judgment against the estate itself; 1 Wms. Saund. 219, a. note 8; Carter 2; 1 Vent. 321; 3 Chitty’s Plead. 254, in note. And an action on the executor’s bond will not lie, until there has been either a judgment in devastavit, or a fieri faciasde bonis testatoris returned no effects, which fi. fa. could never have issued in this case. Hence, it is obvious, that for this judgment, the sureties of the executor never can be responsible: and therefore, the appeal is without the security expressly required by the statute, and also without that substitute for it which the courts have recognized in the executor’s bond. It cannot therefore have been regular or legal, and was properly dismissed. It was said, that where the demand is against the testator’s estate, the executor is not bound to give an appeal bond with surety, although the judgment is rendered against the executor de bonis propriis; and that, were it otherwise, executors would be prevented from seeking relief against erroneous judgments, however ruinous to their testator’s estates. It cannot be denied, that this consideration has been presented as one of the reasons for dispensing with security on appeals from decrees of courts of equity, directing the payment of the demand de bonis propriis of the executor; Shearman adm’r v. Christian, 1 Rand. 393. Yet I am persuaded that the only tenable ground on which security can be dispensed with, is that taken in Sadler’s ex’ors v. Green. However wise it might be to dispense with security in the case of executors, where their executorial bond cannot be resorted to, yet it must be admitted, that the legislative authority has allowed no such dispensation ; and if so, this court cannot. As a test of this, let it be asked, whether, in a case where an executor *has given no security in his executorial bond, this court would allow an appeal without security? I apprehend not. The true and only ground of the decision, therefore, must be that the executor having given security already in his executor’s bond, the requisitions of the statute are substantially fulfilled. It may be doubted, indeed, how far there is a just foundation for the apprehension, that estates will be left undefended, where the executor is required to give security on an appeal from a judgment against himself personally. He has, in truth, in such a case, every motive for appealing, because by the character of the judgment it is made his own case. He does not appeal to save the estate, but to protect himself. It was asked, however, how the case of a judgment at law is to be distinguished from that of a decree in equity, in which it has been decided, that an executor shall not be required to give security on an appeal, though the decree is de bonis pro-priis, if it appears that the demand was against the estate of the testator. I answer that, in the case of the judgment, no action for a devastavit lies, because there has been no judgment against the estate, and the very foundation of the action is wanting. But in equity, it is otherwise. That court enforces by its own process, the creditor’s demand against the sureties in the executor’s bond, in case the amount of the decree against the principal cannot be made. In Shearman adm’r v. Christian, for instance, though the decree was de bonis propriis, yet if the administrator Shearman had proved insolvent, his sureties would have been made parties defendant, and the court looking to the real character of the case,— seeing that it was in reality against the estate and only rendered against the administrator personally because it had been found that he had assets of his intestate sufficient to pay the debt, — would subject the sureties to the payment of the demand. The difference is, then, that at law, where the judgment is against the *executor and not against the estate, the sureties cannot be reached; whereas in equity, though the decree is de bonis pro-priis they may be reached, provided the demand is against the estate, and the decree is rendered personally, only because it appears he has assets to pay the debt. Upon the whole, I am of opinion, that the circuit court rightly dismissed the appeal allowed by the county court; the motion for dismissal having been made at the term to which the appeal was taken.

We come, then, to examine the refusal to allow a supersedeas. In this I think the circuit court erred, notwithstanding the existence of the ineffectual appeal; Day v. Picket, 4 Munf. 104, though no petition, and certificate of eounsel, appear in the record. It does not appear, that the super-sedeas was refused for want of such petition and certificate; and though they might have been required, yet they might have been dispensed with, as they are not made prerequisites by the statute: for I take it, if on motion in court, the court looks into the record, and sees that there is error, a super-sedeas ought to be awarded, since the certificate of the counsel surely could not have more weight than the opinion of the judge. If, indeed, it was rejected for want of a petition, or even if it did not appear that the court went into an examination of the case, there might be much reason to doubt, whether this court could properly attribute error to the inferiour tribunal. But in this case, the motion was made in open court, and on hearing the parties by their attorneys, it was overruled. The court, then, must have examined the record ; the counsel must have assigned the errors; and thus, every purpose of a petition and certificate have been accomplished. Ought the circuit court to have granted the supersedeas? That the personal judgment against the executor was wrong, is clear. Moreover, if the plea rejected by the county court, was a proper plea, and a plea to the merits, it ought to have been received; since *the cause having been continued, it had not the effect of creating delay. Downman v. Downman, 1 Wash. 26; Chisholm v. Anthony, 1 Hen. & Munf. 27; Tomlin’s adm’r v. Howe’s adm’r, Gilm. 1.

We are brought then to the inquiry, whether this was a good plea in bar of the plaintiff’s action? In deciding this question, we are confined to the declaration and plea, and can have no reference to the facts disclosed in the other part of the pleadings, or to the loose statement in the bill of exceptions. The declaration charges the appellant as executor of Pugh, in the usual form in assumpsit, and the plea is, that the defendant never qualified or was the executor of Pugh in Virginia. In England, the plea of ne unques executor alleges, that the defendant never was executor, and never administered any goods and chattels of the deceased. But in Virginia, as the executor cannot prosecute an action to judgment before probat, and as, I apprehend, he is not liable to be sued except as executor de son tort, until he has qualified, it is peculiarly proper, that the plea should deny a qualification; for in doing so, it effectually negatives the supposed character of executor. This, then, seems to me substantially a plea of never executor. It could not be questioned, but for the superadded words “in Virginia,” which seem at first to be pregnant with the affirmative, that the defendant had qualified or was executor elsewhere. Upon reflection, however, I am of opinion, that we cannot so interpret them, nor would the idea have suggested itself, but for the fact disclosed elsewhere by the record, that the defendant was a North Carolina executor and a resident of that state. Taking the plea, then, to be good, it ought to have been received, and the plaintiff might either have replied as in case of an executor de son tort, or he might have set forth that the defendant was appointed executor by the will in North Carolina, and had qualified there, and administered the assets. A demurrer *to this replication would have fairly presented the question so ably argued at the bar, whether a foreign executor, who comes into Virginia, can be sued here. Upon this interesting question, I shall not at this time, offer a definitive opinion, as it is not required by the present state of the pleadings. I shall only say that I incline to think the action may well lie, and shall refer to the following authorities as bearing upon the question: Bryan v. M’Gee adm’r, 2 Wash. C. C. R. 337; Swearingen’s ex’or v. Pendleton’s ex’or, 1 Serg. & Rawle 389; Evans’s adm’x v. Tatem, 9 Id. 252; Selectmen of Boston v. Boylston, 2 Mass. Rep. 384; Goodwin v. Jones, 3 Id. 514; Borden v. Borden, 5 Id. 77; Dawes v. Head, 3 Pick. 128; Harvey v. Richards, 1 Mason 408; 2 Kent’s Comm. 348; Dowdale’s case, 6 Co. 46, b.

It is unnecessary to say any thing on another point made in the argument; the propriety of the order of the county court, setting aside the order of a former term granting a new trial. The payment of costs, however, was properly held a condition precedent of the new trial, according to Rixey v. Ward, 3 Rand. 52.

I think the order of the circuit court refusing the supersedeas, should be reversed, and a judgment, awarding the supersedeas entered here, according to the form in Mayo v. Clarke, October 1800, reported 2 Call 389.

After these opinions had been delivered by the judges, it was discovered, that the order of this court allowing the supersedeas to the judgment of the circuit court, had no reference to the second order of the circuit court refusing the supersedeas prayed to the judgment of the county court. Whereupon, the court entered judgment, affirming the order of the circuit court dismissing the appeal allowed by the county court, without more.

And then Johnson moved, that this court should now award a supersedeas to the other order. He said, that Pugh’s executor having in his petition to this court *prayed a supersedeas to that order, as well as to the order dismissing the appeal, he was entitled to have the judgment of this court, allowing or rejecting that prayer of his petition; and as it now appeared by the order of' this court, that it had given no judgment on that point, the petitioner had a right to demand such judgment now.

Stanard earnestly resisted this motion, on the ground, chiefly, that as more than five years had elapsed since the date of the order of the circuit court, the application for a supersedeas was barred by the statute of limitations, 1 Rev. Code, ch. 128, l 19, p. 492.

CABEEE, J.

When this cause came on to be heard a few days ago, in the regular course of the docket, it was argued at the bar, as if a supersedeas had been allowed by this court to both orders of the circuit court; and the court pronounced a decision accordingly, affirming the order dismissing the appeal, and reversing the order refusing the supersedeas. It was not until after this decision, that we discovered that no supersedeas had been awarded to the latter order. The court, of course, remodeled its decision, and confined it to an affirmance of the order dismissing the appeal. And now, the executor of Pugh applies to the court, to grant him, on his petition formerly presented, a supersedeas to the order of the circuit court refusing a supersedeas to the judgment of the county court.

The application is resisted as being barred by the statute, which provides, that “no writ of error or supersedeas shall be granted to any judgment of a court of law, after the expiration of five years from the time when such judgment shall have been made final.” I readily admit, that the order of the circuit court, must be considered as final, from the time when it was made. But I am of opinion, nevertheless, that it is not too late, under the circumstances of this case, to grant a supersedeas to that order.

*Every person against whom a judgment has been rendered by a county court, has a right to apply to the circuit court of the county, for a writ of error or supersedeas, to that judgment; and if that court refuse the application, he has a right to apply to this court for a writ of error or supersedeas to that refusal; and when such application shall be made, it becomes the duty of this court to. express its judgment upon it. The application of Pugh’s executor, in this case, was made to this court, within the time and in the manner prescribed by law. It is no objection to that application, that it asked for two writs of supersedeas, in one petition. And although both of the orders of the circuit court, from which the petitioner sought relief, had reference to one and the same judgment of the county court, yet these orders themselves were essentially separate and distinct in their character and operation. The one dismissed an appeal previously granted; the other refused a supersedeas then for the first time asked. The application of the executor for relief, was not in the alternative, but against both orders; and he was entitled to the judgment of this court upon both. But that judgment has passed on one only. It was said, that the grant of a supersedeas to one of the orders, was an implied rejection of a supersedeas to the other, although there was no express declaration on the subject. But it can hardly be contended, that this is a necessary implication; for, it may have proceeded from inadvertence on the part of the court, or from the misapprehension or misprision of the clerk. That the omission proceeded from one of these causes, is proved, I think, by the internal evidence of the case itself. It is well known, that on applications for writs of error or supersedeas, the court does not examine the record with that strict attention which usually precedes a final decision of the cause. ' We look no farther than to be satisfied, that there is reasonable ground to doubt the correctness of the judgment. It is *very unusual for one and the same petition to contain a prayer for two several writs of supersedeas. That, however, was the case in this instance; and, what is still more remarkable, the ultimate object of both writs prayed for, was relief against one and the same judgment of the county court. I think it extremely probable, therefore, that when the court satisfied itself that a supersedeas ought to be awarded to the order dismissing the appeal because no security had been taken, it failed, through mere inadvertence, to attend to the other part of the petition. Tor, if the court had thought that a supersedeas should be allowed to only one of the two orders, admitting both to be erroneous, it would, I should think, have granted it to that one of them which is most manifestly erroneous. Now, it cannot be denied, that, even on a superficial examination, the order of the circuit court refusing a supersedeas, was much more clearly erroneous, than the order dismissing the appeal. This will not be doubted after the late decision in this case, that the first order was correct, and the last erroneous. When, therefore, this court, in acting on the petition of the executor formerly presented, and praying a supersedeas to both orders, granted the su-persedeas to the first order, and said nothing as to the last, I think we may fairly presume, that the omission proceeded from mere inadvertence, and not from an intention to deny the supersedeas. Then, if there has been no decision of the court, on that part of the prayer of the petitioner, the question recurs, whether it is now too late for the court to act upon it, and to grant the supersedeas.

In Overstreet v. Marshall, 3 Call 192, this court decided, notwithstanding the strong words of the statute, 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. I am of opinion, that the principle of that case applies to this; that this case presents even a stronger claim to exemption *from the bar of the statute. In that case, the delay after five years, was the delay of the party himself in giving the bond: in the case before us, the party did all that he could do ; he presented his petition in due time and form ; and the court has delayed to act upon it, until the five years have expired. If the delay of the party, in a case like Overstreet v. Marshall, is not held fatal, still less ought the delay of the court, in a case like the one before us.

Therefore, I am of opinion to award a supersedeas to the order of the circuit court refusing a supersedeas to the judgment of the county court. And I am gratified that I am able to do so, consistently with what I deem to be the law; for, if we had not the power to award the supersedeas, there would be a great defect of justice. The judgment of the county court is most manifestly erroneous; and if we do not relieve against it, no other power can; for as the supersedeas has been already refused by the circuit court, that could not revoke its own order.

CARR and BROOKE, J., concurred.

TUCKER, P.,

dissented. He said — I think it is too late now, for this court to grant the supersedeas prayed for. The words of the statute are explicit, that no writ of error or supersedeas shall be granted to any judgment of a court of law, after the expiration of five years from the time when such judgment shall have been made final. The judgment of the circuit court refusing a supersedeas was final at the term in 1828, at which it was rendered. And if a supersedeas to that judgment be now awarded, it will be in the teeth of the statute. In Overstreet v. Marshall, it was decided, indeed, that the order allowing the supersedeas, if made within five years, would suffice, though the writ did not issue until after the expiration of five years. And this was *'consonant with the law; for 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 on which there has never been the judgment of the court either for or against it. There is, therefore, no pretext for saying that the statute has been complied with. Whether the applicant may have a remedy by an application to the circuit court for a supersedeas, now that the judgment of the county court has become final by the affirmance of the order dismissing the appeal, is a question to which I have naturally adverted, but on which it would be premature even to intimate an opinion. It is only necessary here to say, that I think this application for a supersedeas should be overruled. A majority of the court, however, being of a different opinion, the superse-deas prayed for must be awarded.

Supersedeas allowed to the order of the circuit court, refusing the supersedeas prayed to the judgment of the county court, upon the petitioner giving a supersedeas bond &c.  