
    Stephen Jewett versus Stevens Smith.
    A sheriff, having an execution which he has not begun to execute, cannot seize goods which belonged to the judgment debtor at his death, he having died after the issuing of the execution.
    This was an action of replevin for a quantity of boards, which was submitted to the decision of the Court upon certain facts agreed, of which the following appear to be material.
    On the 27th of March, 1814, one John dark was the lawful owner of the said boards, and, having died before the 29th of that month, administration of his estate was on that day committed to the plaintiff, of which he gave public notice in the Hallowell Advocate on the 2d of April following. On the 31st of March aforesaid, appraisers were duly appointed, and on the 16th of April they appraised the boards, which were included in the inventory of the said estate, the same being duly returned on the 29th of the same April. On the day last mentioned, the plaintiff represented the estate of the said deceased insolent, and commissioners were appointed, on the 2th of July following, to examine and report upon the claims; and it appeared that the said estate was in fact greatly insolvent.
    On the 8th of April, 1814, the defendant, being a deputy sheriff for this county, and having in his hands an execution issued in favor of S. Norris against the said John Clark, dated March 24th, 1814, upon a judgment rendered on the 7th of February preceding, seized the said boards, and, having kept them four days, and advertised them forty-eight * hours, was proceeding to sell [*310] them, in virtue of said execution, when the plaintiff caused them to be replevied by his writ in this case.
    If, on these facts, the Court should be of opinion that the plaintiff was entitled to maintain his action, the defendant agreed to be de faulted, and that judgment be rendered against him for one cent damages, with costs ; otherwise, the plaintiff agreed to become nonsuit, and that judgment be rendered for the defendant to have a return of the chattels, with his costs.
    
      F. Allen, for the plaintiff.
    
      Wilde, for the defendant.
    The action being continued nisi for advisement, judgment was pronounced at the succeeding term in Berkshire.
    
   Parker, C. J.

The judgment debtor ceased to have any property in the at property may in abeyance until administration is granted, and is then vested in the administrator, by relation, from the time of the death.

By the common law, the goods of a judgment debtor were bound by the award of execution ; so that the sheriff might proceed upon a fieri facias, although the debtor had died after the award of execution. Now, by Stat. 29 Car. 2, c. 3, in England, goods are bound only from the delivery of the fieri facias to the sheriff.

By our laws, there is no lien upon the goods of the debtor by the judgment, the award of execution, or the delivery of it to the sheriff. An attachment upon mesne process alone constitutes a lien ; and that lien is lost, unless the execution be delivered to the sheriff within thirty days after judgment.

In the case at bar, there was no attachment. Judgment was obtained, and execution awarded and delivered to the sheriff, before the death of the debtor. All this constitutes no lien. The question, then, is, whether the sheriff, having an execution which he has not begun to execute, can seize goods which had belonged to a deceased judgment debtor. And we are clear that he cannot. [ *311] The debtor has * ceased to have property in the goods; and the precept is, to take the goods and estate of the debtor. The inconvenience to the sheriff, arising from a supposed ignorance of the death of the party, will seldom occur ; and he may always guard against it, in doubtful cases, by requiring an indemnity To admit this defence would be to defeat the object of the statute for the distribution of insolvent estates, which is an equal distribution of the estate of the deceased among all his creditors.

According to the agreement of the parties, the defendant must be called, and judgment be entered for the plaintiff for one cent damage with costs.

Defendant defaulted. 
      
       Vide 1 B. & P. 571. —6 D. & E. 368.-2 Ld. R. 849.-7 D. & E 20. —4 Taunt. 702 — 1 D. & E. 637. — 2 Show. 494. — Archb. C. P. 242.
     
      
       By the statute of 1822, c. 93, § 6, it is provided, that all attachments of personal property sb ill be dissolved by the death of the defendant before the levy of execution, in case letters testamentary, or letters of admi' istrition, shall be granted on the estate
     
      
       Vide Weeks vs. Gibbs, 9 Mass. Sep. 74.— Clark vs. May, 11 Mass. Rep. 233.— Grosvenor, Adm'r, vs. Gold, 9 Mass. Rep. 209. — Rockwood vs. Allen, 7 Mass. Rep. 294. — Patterson vs. Patten, 15 Mass. Rep. 473.
     
      
      
        Bull. N. P. 91 — 1 D & E. 729. — 1 Dyer, 76. — Cro. Eliz. 181.
     