Overstreet v. Marshall

3 Va. 192

• Court: Court of Appeals of Virginia
• Decided: April 15, 1802
• Status: Published

Opinion

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.