
    Black, adm’r. vs. Planters’ Bank et als.
    
    1. A fi.fa. issued after the death of defendant, on a judgment rendered previous thereto, relates to the test, and binds the goods of the defendant from that date.
    2. The act of 1833, abolishing different grades of dignity in the debts against the estates of deceased persons, does not affect the lien of a fi.fa. which attaches before the death of the defendant.
    This was a bill filed in the Chancery Court at McMinville, by Black, administrator of Coffee, deceased, against the widow, distributees and creditors of the deceased, suggesting the insolvency of the estate, and praying for a settlement of the estate according to law.
    The bill stated, that the Planters’ Bank had recovered a judgment against Coffee in his life time, for $5371., in the Circuit Court of Davidson county, on the 14th day of September, 1842. That Coffee died on the 3rd day of October, 1842. On the 24th day of October a fi.fa. was issued, and on the 29th was levied on the slaves arid other personal property of the deceased. On the 7th day of November the County Court of Warren county, appointed Black administrator of the estate, and on the 19th day this bill was filed. It prayed an injunction against the fi. fa., the sale of the property of the estate, and distribution of the proceeds pro rata amongst all the creditors of the deceased.
    The Bank demurred to the bill. The demurrer was sustained by the presiding Chancellor, Ridley, and complainants appealed.
    
      Meigs, for the complainants.
    
      Fogg and Taul, for the defendants.
   Gkeen, J.

delivered the opinion of the court.

There is no question, but that in England a fi,. fa. issued after the death of a party, but tested before his death, would bind his goods. Waghorne vs. Langmead, 1 Bos. & Pull, 571.

In this State, the same doctrine has been held. In Preston vs. Surgoine, Peck’s Rep, 80, a majority of the court, against the opinion of Judge White, decided, that a fi.fa. issued after the death, upon a judgment rendered' previous thereto, would relate to the teste and bind the goods. This decision has been followed ever since. 1 Yerg. Rep. 291; 7 Yerg. Rep. 529; 9 Yerg. Rep. 442.

The question here is, whether the act of 1833, ch. 36, sec.^, 6, affects this case. That act (Car. & Nich. 395,) provides, “that no action brought, judgments, bills single, or notes of hand shall have precedence over unliquidated accounts,” &c. “but that all such claims be acted upon as beiug of equal grade.”

This act only intended to abolish the preference which existed at common law, and which the act of 1786, ch. 4, séc. 2 (Car. & Nich. 73,) defined and regulated; by which “debts due by bills, bonds, and promissory notes, and settled and liquidated accounts signed by the debtors,” were declared to be of equal dignity.

But the act of 1833 declares, that neither the debts specified in the act of 1786, nor judgments, nor actions brought, shall have precedence over unliquidated accounts. Thus all distinction, as to the mere dignity of debts, is done away; but the lien acquired by an execution is not affected.

¡jíuch a case is not within the letter of the act of 1833; execution not being mentioned in the act, nor is it within its spirit. These execution creditors, therefore, have a preference over other creditors.  