CHARLES E. ALLEN v. ELIZA PLUMMER.
‘The rule, that the lien of. an alias execution relates to the teste of the original, is not affected by the fact that the alias issued from the Court of another county, whilst the junior execution (of the creditor contesting) issued from the Court of the county where the property lies, and in point of fact, was first levied thereupon.
.An execution placed in a sheriff’s hands after sale under other process, hut before the return of the proceeds, cannot compete therefor, with the executions under which the sale was made.
RetuRN of a sheriff, asking instructions from tbe Court as to tbe application of money raised by virtue of sundry executions in bis bands, — made to Watts, J., at Fall Term 1868, of tbe Superior Court of Halifax.
The money bad been raised out of tbe lands of one Eaulcon, by sale made June 15, 1868. At that time tbe sheriff bad in bis bands an alias execution from Warren county, in favor of the defendant, tbe original of which, tested at Fall term 1867 -of Warren Superior Court, bad been in bis bands, and bad by' him been returned to tbe Spring'term 1868, of Warren Superior Court; also a ven. ex. in favor of tbe plaintiff, issued from May term 1868, of tbe County Court of Halifax, upon a levy on said land made by tbe sheriff, by virtue of an original ■execution tested of February term 1868, of that Court.
After tbe sale, an alias execution, in favor of Lanier, Bros., ■& Co., came into tbe -bands of tbe sheriff. Tbe original of this execution was tested of Fall term 1867, of tbe Superior Court of Halifax.
Upon consideration, bis Honor was of opinion that the process of tbe defendant was entitled to a priority, and gave instructions accordingly. From this judgment, tbe plaintiff appealed.
Gonigland, for the appellant,
cited Hardy v. Jasper, 3 Dev. 158; Tarkington v. Alexander, 2 D. & B., 87; Smithv. Spencer, 3 Ire. 256; Yarbrough v. State Bank, 2 Dev. 23; Washington, v. Saunders, 2 Dev. 344.
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Rogers & Batchdor, contra,
cited Green v. Johnson, 2 Hawks,, 309; Brasjidd v. Whitaker, 4 lb. 309; Palmer v. Ciarle, 2 Dev. 354; Jones v. Judkins, 4 D. & B., 454.
Reade, J.
At the time the sheriff made the sale, he had im his hands two executions, of different dates; and it is settled,, that the older execution must be first satisfied.
The fact that the older was an alias, issued subsequently to* the junior, makes no difference, as the alias relates back to the1’ date of the original, and is, in that sense, the older. The fact that the older was issued from another county (Warren,) to’ the sheriff of Halifax, makes no difference, as the process off the Courts have when issued, the same force all over the State-
The execution of Lanier and Bro., did not reach the sheriff" until after the sale, and is out of the question. The funds, or so much as may be necessary, will be applied to the older execution — Mrs. Plummer’s — and if there is any surplus', it will be applied to the junior execution — Allen’s.
Per Curiam. There is no error-