
    Battle vs. Bering.
    By the act of 1787., ch. 22, sec. 2, the same lien is given under a decree and execution of a chancery court, that is given under a judgment and execution at law.
    A judgment and execution at law, binds the personal property of the debtor in this State from the vendition of the judgment,"against the debtor and a purchaser from him after [judgment rendered, though he purchased before execution issued and levied.
    On the 1.5th of November, 1831, Battle recovered a decree for money in the chancery court "at Franldin, against Martin Clark, with the usual award of execution. On the 3d of January, 1832, the execution issued, tested at the November term. On the 7th of December, 1831, Bering had purchased from Clark, a'negro man slave, a blacksmith, for the sum'of twelve hundred dollars, and gave his notes payable at a future day for the price, which notes it is alleged, Clark passed off. , The execution was levied upon the slave, and this bill filed to enjoin the sale; which was perpetually enjoined in the circuit court, and an appeal prosecuted to this court by Battle, the cred-ilor. ^ , ■'
    
      J. S. Yerger and F. B. Fogg, for Battle.
    The only question in this case is, whether a decree of g court of chancery binds the goods and chattels of the debtor, as against a purchaser after the. decree rendered, but before execution issued and levied.
    In this State, by express statute, the same power and effect is given to a decree of a court of chancery that a judgment has at common law. Act of 1787, ch. 22, sec. 2: 1 Scott’s Rev. 392.
    At the-common law, previous to the passage of the statute of 29, Car. 2, an execution bound the goods and chattels of the debtor from the teste thereof, or from its award, as well against purchasers as against creditors. It was to remedy this that the statute 29, Car. 2, was passed, . . . giving the lien only irom the time the execution was placed in the hands of the sheriff. 1 Yerg. Rep. 291: Peck’s Rep. 72: 2 Hawk’s Rep. 232, 309, 341: 3 Do. 293, 296: 1 Saund. Rep. 219, f. and g.: 2 Do. 9 No. 5, 4: Com. Dig. (Execution D, 2) 237: Cro. Eliz. 174, 440: 7 Term, R. 21: 2 Bac. Abr. 733: Peck’s Rep. 30.
    The cases in Peck’s Rep. at page 72, and 1 Yerger’s Report, at page 291, were recognized by this court in the case of Vaulx and Williams vs. Earthman, at the March term, 1833. 4 Yerg. Rep. 35S. In this State, the award of an execution would be the day the judgment Was rendered, all judgments being complete when rendered, and no special award of execution being necessary. 1 Yerg. Rep. 291.
    The statute of 29, Car. 2, is notin force in this State, so that a judgment or decree, and the lien of the execution thereon, remains as at common law. 1 Yerger’s Rep. 291. The execution in this case bound the property at least from the day the decree was rendered, if not from the first day of the term, and therefore the decision of the judge below was erroneous and should be reversed.
    
      R. C. Foster, Jr. D. Craighead and Laughlin, for Bering.
    At common law, personal property was bound from the award of execution. 2 Bacon, letter E, page 734 and 701.
    By the 29th of Charles II., ch. 3, execution binds personal property only from its delivery to the sheriff.
    By the statute of 1715, ch. 31, the statute 29 Charles II. is in force in this State, andv consequently, the title under the bill of sale to complainant is the best.
   Catron, Ch. J.

delivered the opinion of the court.

First, as to the effect of the decree. By the act of 1787, ch. 22, sec. 2, it is enacted, “that in all cases where decrees may have been made in any suit in equity in any of the courts of this State, or shall thereafter be made for any sum or sums of money, it shall, and may be lawful for execution to issue thereon against the defendant’s body, or against his goods and chattels, lands and tenements, to satisfy such d'ecrefe, (and lands and tenements, goods and chattels, shall.be bound by such decree and execution in the same manner as lands and tenements, goods and chattels/are by judgments in law), and costs, in the same manner as executions may or shall issue in the courts of law.”

The decree of Battle against Clark, therefore, had the force of a judgment at law. Does a judgment at law overreach an alienation made by the execution debtor" after the judgment rendered, and before the execution comes to the sheriff’s hands.

The relation of executions has so often been before this court, that we will not repeat what has been heretofore said on the subject. That the statute of frauds, 29 Car. II. is not in force here, or was it ever in North Carolina, has been declared in. almost every case treating on liens and executions for forty years. We, therefore, must be governed by the common law, in the case before us; and by the common law, the goods of the debtor are bound from the time the execution is awarded; but the difficulty with us has been when, this was done. This court, in Johnson vs. Ball, (1 Yerg. 292), held, that to award was to adjudge, to give any thing by judicial sentence; that our judgments in terms award execution; and that to this date at least, the execution tested as of the term at which the judgment was rendered relates, by the English and American authorities. In Preston vs. Surgoine, (Peck’s R. 80) the same rule is recognized. The court declare that the execution bound the debtor’s property from its test; and if he died after the judgment rendered, but before the execution came to the sheriff’s hands, yet no proof could be heard or inquiry made as to this fact, if the execution was tested before the death, and the judgment was before.

In the 31 of Elizabeth, (Cro. E, 174), it was holden, that if a fieri facias be directed to make execution of goods, and after the test of the writ, and before the sheriff executes it, the party sells the goods bona fide, they can be taken in execution; for by the award, the goods are bound, so that they may be taken in execution in whose hands soever they come. Cro. E, 440: 2 Bac. Ab. 733: and 10 Vin. Ab. 566, are to the same effect. Suppose a sale had been made by the sheriff, by virtue of Battle’s judgment, and Bering had sued the purchaser in detinue for the slave. The purchaser would have, relied upon the decree, which ordered execution to issue, and on the fi. fa. issued in pursuance of the decree, and bearing even date with it and the purchaser’s title, by relation, must have been holden to have vested when the execution creditor’s right to satisfaction vested, which was when execution was awarded him by the decree, (2 Hay. 245).

Since the decision of this court in Preston vs. Surgoine, in 1823, (Peck, 80), no discretion is left to the court; we dare not hold that no lien is fixed until the execution is actually taken out of the clerk’s office. The judgment was had against Surgoine in May; on the 14th of August he died; and on the 16th, Preston took out his execution. The cause was argued and advised upon. Judge''White delivered an opinion, that the fi. fa. did not bind the goods of Surgoine, and could not be executed by the sheriff disregarding the death, and that the execution should be quashed. But the other three judges held, that in case of personals, if a. fieri facias issue after the death of defendant, tested as of the term preceding his death, it binds the goods, and they are in custodia legis, not in the hands of the executor. Haywood, Peck and Brown, concurring. And this is in accordance with the opinion' of Judge Haywood, as expressed in 1795, in Winstead vs. Winstead, (2 Hay. 246). Tile, decision pursues the common law authorities, (10 Vin. Ex. A. a. 566: 2 Ld. Ray, 849), and the opinion of the majority of the court determines that the common law is unaltered by our statute, requiring clerks and sheriffs to endorse on process'the time of its issuance by the clerk, and delivery to the sheriff.

That the statute of Charles II. declaring no execution should form a lien on personals so as to defeat bona fide purchasers, &c. is the safer rule, we think true; but the legislature has not so declared, and it is the duty of this court to administer the law as it is found to exist. The decree of the circuit court must, therefore, be reversed, and the bill dismissed.

Decree reversed.  