#### Commonwealth v. Moore’s Adm’r.

December, 1844,

Richmond.

Appeal—Limitation—Statute—Commonwealth.*—The act of the 16th April 1831, Sup. Rev. Code, § 31, p. 146, which limits the right of appeal to the court of appeals to five years, applies to the *commonwealth.*

In June 1834, Charles James Faulkner, as administrator de bonis non of Peter Moore deceased, petitioned the superior court of law and chancery for Henrico county for an appeal from the decision of the auditor of public accounts, rejecting a claim for services rendered by his intestate in his lifetime, as an officer in the war of the revolution. The appeal was allowed, and at the same term of the court the cause was tried, when the judgment of the auditor was reversed, and a judgment was rendered in favour of the administrator.

More than five years after the judgment was rendered, the attorney general applied to this court for an appeal, which was allowed.

The only question considered by the court, was whether the statute limiting the time in which appeals may be taken to this court, applied to the commonwealth.

The attorney general, for the commonwealth. The general law on the subject of appeals to this court will be found in the Sup. to the Rev. Code, *'i*31, p. 146, *and the question is whether that law applies to the commonwealth? The rule has been often recognized, that the commonwealth is never bound by statutes of limitations. This is the law of England, 6 Dodd’s Bac. Abr., title Prerogative, letter E., § 5, p. 464; Lambert v. Taylor, 4 Barn. & Cres. 138; 10 C. L. R. 293; Rex v. Morrall, 2 Exch. R. 360; 6 Price’s Rep. 24; and upon the same principle it should be the law as to the commonwealth of Virginia.

Brooke and C. Johnson, for the appellee.

The statute limiting the time in which appeals may be had to this court, is universal in its terms, and certainly sufficiently comprehensive to embrace the commonwealth : and the only question is, whether the maxim which has been invoked in her behalf by the attorney general, is applicable to this case? That maxim is a common law maxim; and can only be applicable to original suits; as there is no common law right of appeal to this court. The right of appeal is conferred by the statute; and is limited by its provisions. If the commonwealth is entitled to appeal, it is given in the same words in which it is given 'to all other suitors; and limited in the same manner.

The statute does not take away a right, but confers one, which must be taken as it is given. By the statute all absolute right of appeal is taken away; and if the commonwealth comes here, she must do it in the ■ manner, and in the time which the statute prescribes.

The case of Gaskins v. Commonwealth, 1 Call 168, goes far to settle this question. In that case it was held that upon a judgment in favour of the commonwealth, the statute would limit the time in which an appeal might be taken. The rule must be reciprocal. These revolutionary claims would have long since been barred but for the principle that the commonwealth not being barred, parties claiming from her are *121not barred; and if *so the converse must be true, and if the other party is barred, the commonwealth must be barred also.

The attorney general, in reply. The limitation in the statute is a restriction upon an acknowledged right. The constitution has created this court, and every citizen is entitled to have its judgment on his rights, except so far as restrained by the law. If there was no law in relation to appeals, every suitor would be entitled to come here; and the statute only modifies that right. The language of the statute shews that it was intended to be applied to private persons, and that the commonwealth was not within the contemplation of the legislature in its enactment. She has a right to appeal; shall this right be barred bjr a statute in which she is not named? The well settled principles of the law forbid it.

*

The principal case is cited in McIntosh v. Brader, 80 Va. 220, 222. See monographic *note*on “Appeals.”

BAEDWIN, J.,

delivered the opinion of the court.

The court is of opinion that the general rule of law, which exempts the commonwealth from the operation of the statutes of limitation, is applicable to original controversies, and not to cases in which the rights of the parties have been adjudicated by the judgment, decree, or sentence of a court of competent jurisdiction. In such cases, the question whether the merits of the judicial decision can be reviewed by another tribunal, must be governed by the laws prescribing and regulating the jurisdiction of the appellate forum. By the act of the general assembly of the 16th of April 1831, establishing the circuit superior courts of law and chancery, arbitrary appeals from the decisions of those courts to the court of appeals are prohibited; and the application for an appeal, writ of error or supersedeas directed to be made, in all cases, by petition to the court of appeals, or a judge thereof in vacation. And the act expressly provides, “that no petition preferred to the court of appeals, or any judge thereof in vacation, for an appeal from, or *writ of error or supersedeas to any final decree in chancery, judgment, proceeding, sentence or order of any circuit superior court of law and chancery, shall be received or allowed, unless the same shall be preferred within five years next after the date of such final decree in chancery, or judgment, proceeding, sentence or order complained of.” It is clear from the provisions of this statute, that the judges of this court, whether in term time or vacation, have no lawful authority to grant a supersedeas to a judgment of a circuit superior court, after the lapse of five years from the time of its rendition: and that it is their duty to withhold a consideration of the merits of the cause, though the objection be not taken by plea or otherwise ; and even though it should be expressly waived by consent of the parties. Inasmuch, therefore, as the commonwealth’s application for the supersedeas in this case was not made till after the expira - tion of five years from the date of the judgment, it is considered bjr the court that the said supersedeas be dismissed as having been improvidently awarded.

Which is ordered to be certified to the circuit superior court of law and chancery of Henrico county and the City of Richmond on the common law side.