#### John Doe ex dem. of Peter Arrington, v. Joel Sledge,

From Frank,¡D<

If the Plaintiff in an original fieri facias grants indulgence to the De* fendant, and afterwards issues an alias, this indulgence does not affect the lien of the first writ, as to the Defendant or his vendee:

Ejectment, in which both parties claimed under one Jeffries. The lessor of the Plaintiff produced a judgment in his favor against Jeffries, upon which an original writ offieri Jadas issued, tested, of the February term, 1820, of Nash County Court, which was returned, 41 stayed by the Plaintiff.” From the ensuing May term *.n alias writ issued, under which the land in question was sold to the lessor of the Plaintiff.

The Defendant offered in evidence a deed of bargain and sale for the same land, executed by Jeffries to him, dated between the February and May term, 1820, of the Court from which the execution above-mentioned issued.

His Honor Judge Martin instructed the Jury, that a ivrit of fieri fiadas created a lien upon the property of the Defendant from its teste — and where a succession of such writs issued, the lien related to the teste of the firsts so as to invalidate an alienation by the Defendant, as against the subsequent sale under the writ.

A verdict was returned for the lessor of the Plaintiff and the Defendant appealed.

*360June, 1830.

Seawell & W. II: Maywood, for the Defendant,,

contended, that the stay of the original writ of fieri facias was fraudulent, as to a junior execution; and on the same principle, was fraudulent against a purchaser — as the Plaintiff in an execution, by a stay of it, placed himself in the same situation as if it never had issued.

The cause was submitted by Badger, for the lessor of the Plaintiff, without argument.

Ruffin, Judge.

The principle laid down by the Court below, is a very old one. It is considéred as thoroughly settled, that, as against the Defendant in the execution, and all claiming by his alienation, a fieri fa-cias binds from its teste. Without entering at large into the subject, it will be sufficient to refer to what was said by me on this point, in Palmer & Co. v. Clarke (ante, p. 356). Numerous cases also support the opinion, as to the relation of an alias duly issued.

Per Curiam. — Let the judgment of the Court below be affirmed.