It has been repeatedly adjudged that at common law a writ of fieri facias when issued bound the goods of the debtor, which were liable to seizure and sale, from its teste, and prevented him from selling or assigning them; while the lien attached to equitable interests only from the time of issue. Jones v. Judkins, 4 Dev. & Bat., 454; Williamson v. James, 10 Ired., 162. By statute the writ when issued *218by a justice of the peace had such effect from the levy and not from the teste. Rev. Code, ch. 45, § 20.
In the construction of this statute it was held that, as to the defendant himself and his representatives, the common law remained unaltered, and “that the goods and chattels are as to them still bound from the teste of the execution,” and Daniel, J., adds: “Although the defendant in the execution died before the levy, the officer might go on notwithstanding and levy on the goods in the hands of the executor or administrator and sell, and the purchaser acquired a good title.” McCarson v. Richardson, 1 Dev. & Bat., 561.
By the act of April 9th, 1868, amendatory of section 261 of the Code, a similar and more explicit restriction is put upon all writs of fieri facias, and it is enacted that “ ho execution against the property of the judgment debtor shall be a lien on the personal property of such debtor as against any bona fide purchaser from him for value or as against any other execution, except from its levy.” Acts 1868-’69, ch. 148.
In Aycock v. Harrison, 65 N. C., 8, on a motion to set aside an execution levied on land, Reade, J., thus lays down the general doctrine: “ When there is a judgment, and a fieri facias, or venditioni exponas issues during the life of the defendant, the sheriff may proceed to sell, although the defendant die before the sale. And so he may when the fieri fa-cias or venditioni exponas issues after the death but is tested before.”
In the case first cited the execution was in the hands of the officer during the life time of the debtor, but if it issues afterwards and its teste overreaches his death, it has the same effect and conveys equal authority to the officer, as a few references will show.
In Vaughan v. Langmead, 1 Bos. & Peel, 571, the facts were these: The judgment was entered May 23, and the debtor died May 29. The executio.n, bearing teste before the death, was issued two days thereafter and levied on the goods of *219the decedent. A motion to set aside the fieri facias was denied, and the court said that with respect to .the creditors, though the property in the hands of the deceased was not bound till the delivery of the writ to the sheriff, yet the right of the creditor to pursue that property till the delivery of the writ would not make this execution irregular.
In Dokin v. Cartright, in note at foot of page 572, same volume, it is declared that though a judgment in respect of purchasers binds only from the signing, yet as to the party and his representatives, it binds as it did before at common law.” “ Goods in the hands of an executor may be taken on a fi. fa. against his testator, bearing teste before his death.” Watson, Sh’ff, 7 Law Lib., 175.
In Graham v. Wilson, 5 Harr., (Del.) 435, the judgment was rendered March 11, 1854, as of November Term, 1853; the intestate died March 11, 1854; and execution issued March 23, tested December 14 preceding, and was levied upon property which the administrator had taken into possession and advertised for sale. The court say : “ By the common law the judgment had relation to the term and the execution to its teste, and it bound the goods of the defendant who died after the teste and before the next term, in the hands of the executor or anybody else.”
The two cases cited and mainly relied on in the argument of Mr. Mason (Alston v. Foster, 1 Dev. Eq., 337, and Simpson v. Brice, 5 Mum., (Va.) 175,) do not sustain his proposition that the attaching lien does not follow the debtor’s property into the hands of his widow when assigned for her year’s support. In both cases the judgments were not against the debtor but against his personal representative, and executions issued in the usual form against the goods and chattels that were of the deceased in the hands of his executor, and it is held that the officer could not seize and sell the property which had been delivered over to a legatee or person entitled, for the reason assigned by HENDERSON, O. J., *220“ the negroes not being the estate of Hill in the hands of his executor.” See also Hostler v. Smith, 2 Hay., 305, and Bayner v. Robertson, 3 Dev., 437, to same effect.
The present case is clearly distinguishable, since here the execution issues on a personal judgment against the deceased debtor’s own property, and by relation binds it from a time antecedent to his death. The widow .takes the articles allotted to her as a claimant preferred by law to all creditors, but subject to the liens resting upon them as they came into possession of the administrator of her husband.
It is insisted further that the goods being less in value than five hundred dollars were exempt from execution and did not become liable until the death of Hill and then the superior right of the widow attaches and prevails.
It is true no goods of the debtor are bound by an execution under which they could not be taken, by reason of a legal exemption, and it would be an interesting inquiry, if both the claims to the year’s support and to have satisfaction of the creditor’s execution from the debtor’s property sprang into existence at the same moment, which, if either, should have priority. But the question does not arise. The articles were not exempt. The debt was created in 1865, when only the few articles enumerated in Rev. Code, ch. 45, §§ 7 and 8, were protected, and except the few articles mentioned in section 7, none of which so far as the case discloses were among those assigned to the widow, the benefit of the exemptions contained in section 8 could be secured only by application to a justice and in the mode pointed out in section'9. The intestate in his life-time could have had these exemptions allowed him and the property placed beyond the reach of execution. But he failed to do so, and hence the property subject to sale for the plaintiff’s debt during the debtor’s life, continued liable after his death.
It must therefore be declared there is error in the judgment and the same is reversed, and judgment as of nonsuit *221will be entered here according to the terms of the case agreed, and it is so ordered.
Error. Reversed and judgment here.