Peyton V. Brooke. * 95 The execution was therefore void, and no subsequent MARSHALL, Ch. J. Does not that relate to an alias taken out before the return day of the first execution? Jones. No alias execution can issue until after the return day of the first. If the first execution be returned not executed; or if it be executed and not returned, the plaintiff may have an alias, but it must be at his own expense. MARSHALL, Ch. J. Would not an action at common law lie on the bond, even if the execution was quashed upon which the bond was founded? C. Lee. If the bond was erroneous, the court would quash it as well as the execution. (Simm v. Johnson in the court of appeals of Virginia, reported in Washington's or Call's Reports.) MARSHALL, Ch. J. The plaintiff may quash the bond, and proceed on the original judgment; but the defendant can only quash the execution. A difference *was taken between a bond on a ca. sa. and a bond on a fi. fa. under the construction of the statute of Hen. VIII. respecting sheriffs' taking bonds colore officii. The case is reported. I was counsel and argued the case. I believe it was that of Simm v. Johnson. Simms, for the defendant in error. At common law, a creditor might have an alias capias if the first was returned non est. The statute provides, that he may also have an alias if the first be not returned executed. If the first be not returned, the alias must be at the plain tiff's costs; if it be returned, the alias is to be at the costs of the defendant. In no case is judgment given for the costs of an execution. The clerk never taxes it until he issues the execution. The constant and uniform practice of the courts of Virginia is to add the cost of the alias, if the first be returned and not executed. But if the clerk had not a right to insert the cost of the alias ca. sa. that does not vitiate the bond. It is but the act of a ministerial officer, and the court have a right to correct it. The sheriff is to take the bond for the amount mentioned in the execution. It is not right that the error of the clerk should deprive the plaintiff of his security; especially, as the bond is given for the benefit of the debtor, and the creditor has released the whole amount in dispute. It is no cause to quash the bond; nor to render it void at common law. Swann, on the same side. The judgment is for costs; all the costs which have accrued or shall accrue. It is admitted that we have a right to recover the costs of the first execution; and even if the clerk has mistaken the law in adding the costs of the second, yet, that error is cured by the plaintiff's release. In the case of Scott v. Hornsby, 1 Call, 41. the court of appeals of Virginia decided, that if a forthcoming bond be taken for more than the sum due by the execution, and the plaintiff release the excess, the bond will support a judg ment. *Jones, in reply. The awarding of execution on al forthcoming bond, upon motion, is a summary remedy given by statute, in derogation of the common law, and, therefore, the provisions of the statute must be strictly pursued. The release cannot aid an error in the exercise of this summary jurisdiction. I admit the prac tice to be, that if the bond be for more than the judgment, and the plaintiff releases the excess, it will support a judgment. So if the bond be for too small a sum, it is still good as a bond at common law. But in neither case will it support the summary proceeding by motion. The taking a forthcoming bond is one mode of exe Peyton V. Brooke. * 96 Peyton V. Brooke. cuting the writ. If the defendant be arrested, the quashing of the execution releases his body. So, if goods be taken on a fi. fa. and the fi. fa. be quashed, the goods are discharged. So in this case, the bond (being taken in lieu of the goods or of the body) would be discharged by the quashing of the execution. It is true the judgment is for costs; but it cannot be in the alternative; that is, if one execution, then for 22 pounds of tobacco; and if two executions, then for 44 pounds of tobacco. MARSHALL, Ch. J. The court is of opinion that the act of assembly contemplates the case where the first execution is not returned nor executed; that is, where it is out and may be served. The clerk was right in adding the costs of the alias ca. sa. The judgment is for costs, generally; which includes all the costs belonging to the suit, whether prior, or subsequent to the rendition of judgment. If new costs accrue, the judgment opens to receive them. Judgment affirmed with costs. * 97 A devise of tate called of Henry, con *LAMBERT'S LESSEE v. PAINE. THIS was an ejectment brought in the circuit court "all the es- of the United States, for the middle circuit in the VirMarrowbone, ginia district; in which John Doe, a subject of the King in the county of Great Britain, residing without the state of Virginia, taining by es- lessee of John Lambert, another subject of the King of timation 2,585 Great Britain, complains of Richard Roe, a citizen of carries the fee. Virginia, residing within the said state, and claims posQuare, whe- session of a messuage and tenement containing 156 acres subject born in of land in the county of Henry, being part of a tract of England, in land called Marrowbone. acres of land," ther a British the year 1750, and who al- The jury found the following special verdict, viz. ways resided "That George Harmer, being seised in fee of the lands in England, in the declaration mentioned, on the 25th of June, 1782, year 1786, made a paper writing, purporting to be his last will and could, in the take and hold lands in Vir ginia by descent, or by devise? Lessee V. Paine. testament, all written with his proper hand, and signed Lambert's by him; which will we find in these words: "In the name of God, Amen. I George Harmer, of the commonwealth of Virginia, being perfectly well and of sound mind and memory, do make and ordain my last will and testament in manner and form following, that is to say, all the estate, both real and personal, that I possess or am entitled to, in the commonwealth of Virginia, I hereby give and devise unto my friend, Thomas Mann Randolph, of Tuckabo, and Henry Tazewell, of the city of Williamsburgh, in trust, upon these conditions, that when John Harmer, my brother, now a subject of the King of Great Britain, shall be capable of acquiring property in this country, that they, or the survivor of them, do convey, or cause to be conveyed, to him in fee-simple, a good and indefeasible title in the said estate; and in case the said John Harmer should not be capable of acquiring such right before his death, then that my said trustees, or the survivor of them, do convey the said estate in manner aforesaid, to John Lambert, son of my sister, Hannah Lambert, when he shall be capable of acquiring property in this country; and in case John Lambert should not, before his death, be capable of acquiring a title to the said estate, then I direct the same to be conveyed to my sister, Hannah Lambert, if she, in her lifetime, can acquire property in this country. "But if the said John Harmer, John Lambert and Hannah Lambert, should all die before they can acquire property legally in this country, then I desire that my trustees aforesaid may cause the said estate of every kind to be sold, and the money arising from such sale, together with the intermediate profits of the said estate shall be by them remitted to the mayor and corporation of the city of Bristol, in England, to be by them distributed, according to the laws of England, to the right heirs of my said sister, Hannah Lambert, to whom I hereby give all such money, excepting the sum of 100%. lawful money to each of the aforementioned trustees, which shall be paid out of the first money arising from the sales aforementioned, or from the profits arising to my heirs. In witness whereof, I have hereunto set my hand and affixed my seal this 25th of June, 1782." We find that on the 12th day of September, 1786, the said George *98 Lessee Y. Paine. Lambert's Harmer, being seised as aforesaid, duly executed another writing testamentary, which we find in these words: "In the name of God, Amen. I George Harmer, being sick and weak in body, but in perfect mind and memory, do give and bequeath unto Doctor George Gilmer, of Albemarle county, all the estate called Marrowbone, in the county of Henry, containing, by estimation, 2,585 acres of land; likewise, one other tract of land in said county, called Horse-pasture, containing, by estimation, 2,500 acres; also, one other tract, in the county aforesaid, containing, by estimation, 667 1-2 acres of land, called the Poison-field. It is my desire that all my negroes, horses, and other property, be sold, and after paying my debts, the balance, if any, be remitted to my nephew, John Lambert, out of which he shall pay his mother five hundred pounds," &c. *99 Afterwards, on the 12th or 13th day of September, 1786, he departed this life without revoking the will or writing testamentary last mentioned; and without any other revocation of the will first mentioned, than the said writing testamentary of the 12th of September, 1786. We find that John Harmer, mentioned in the paper writing of June, 1782, departed this life about the year 1793. We find that John Lambert, named in the paper writings *aforesaid, the lessor of the plaintiff, and, if capable of inheriting lands in Virginia, heir at law to the said George Harmer; that he was born in England on or before the year 1750; that he has never resided in any of the United States of America, and is, and ever has been, from the time of his birth, a subject of the King of Great Britain. We find that George Gilmer aforesaid, under whose heir and devisees the defendant holds, died in the month of November, 1793. We find that in the December session, 1798, the general assembly of Virginia passed an act, which we find at large in these words: "An act vesting in the children of George Gilmer, deceased, certain lands therein mentioned, (passed January 12, 1799) "Section 1. Be it enacted by the general assembly, that all the right, title and interest, which the commonwealth hath, or may have, in or to the following lands, lying in the county of Henry, which George Harmer, by his last will and testament, devised to a certain |