#### Ellar v. Ray.

From Ashe.

The execution from a Justice, binds lands from the time of the levy, and an order of sale subsequently made has relation back to that period.

This was an action on the case, brought by Plaintiff against the Defendant, Sheriff of Ashe county, to recover from him the sum of $ 65, which it was alleged the Defendant had received on two executions, which had been issued at the instance of the Plaintiff, against one Brown. The facts were’, that on the 8th of July, 1821, two executions issued in favour of the Plaintiff against Brown, for the sum of S 32,50 each, and on the 4th of the following October, these executions were levied on the lands of Brown. On the succeeding day, (5t!i of October,) George Bower sued out two executions against *569.Brown for & 68 each, which were levied on the same day on Brown’s lands. These several executions were returned at the same term, to Ashe County Court, orders of sale were made in each, and writs of venditioni expo-nas accordingly issued, all of which came to the Defendant9?; hands at the same time. Defendant, by virtue of the writs, sold the land for the sum of g> 15G. On these facts, Plaintiff's counsel prayed the Court to instruct the Jury, that as Plaintiff's executions wore, is-íjued and levied before the date of Bower’s executions, Plaintiff was entitled to have his first satisfied out of the sale of tire land. This the Court declined, and the,luiy was instructed that the money must be apportioned, among Use writs of ven. ex. A verdict, was returned for ?*lainiiff for §> 40. A new trial was prayed and refused, and from the judgment rendered, Plaintiff appealed to this Co:u*t.

Wilson, for Plaintiff,

referred to Lash and others, v. Gibson — (1 Murphy, 266.)

Taylor, Chief-Justice,

delivered the Court’s opinion: The Plaintiff claims by virtue of a prior levy of two executions issuing from a Justice’s judgment against Brown, who claims under a posterior levy. The executions were all returned to the same sessions of the County Court, and judgment wan then given that the luid should fee sold. It is impossible to distinguish this case from Lash v. Gibson, 1 Murphey, 366, in which it was decided that the execution from a Justice, bound the land from the time of the levy; and that an order of sole, subsequently made, had relation back to that period. We see no reason to disturb that Judgment, believing it to fee founded on right principles, and it must govern the decision in this cane. There mast consequently he a new trial.