¶1This day came again the parties, by counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid and argument of counsel, is of opinion that section 3538 of the Code of Virginia does not apply to appellate proceedings. It is therefore considered that the judgment complained of be reversed and annulled, and that the plaintiff in error recover of the defendant in error his costs by him expended about the prosecution of his writ of error and supersedeas aforesaid here.
¶2*698And this court proceeding to enter such judgment as the said circuit court ought to have entered it is further considered that the plaintiff take nothing by his petition, and that the defendant go thereof without day and recover of the plaintiff his costs by him expended about his defense in the said circuit court.
¶3Which is ordered to be certified to the said circuit court of Prince William county.
¶4Reversed.