MINOR US. WALTER.

which is sued for in this action, were not credited in the former suit at their fair value, no reason can be given why such a mistake or wrong should not now be rectified; unless we are restrained by some principle of positive law.

It has been argued that the evidence objected to would tend to impeach the merits of the former judgment. If this be true, the evidence is certainly inadmissible. The judgment of a court of competent jurisdiction, until it is set aside or reversed, is conclusive as to the subject-matter of it. Judicium semper pro

veritate accipitur (1). But this principle applies only [* 238 ] to matters directly adjudicated and within the cognizance of the court pronouncing judgment; not to collateral points incidentally arising in the course of judicial proceedings.

Then was the justice, before whom the first suit was brought, bound to take cognizance of the value of the articles credited? Or, if the defendant in that suit had appeared and pleaded to the action, would he have been permitted to offer evidence as to the value of those articles? If a gross amount had been credited, without specifying the particulars, no such evidence would have been admissible; or if a sum or sums of money had been credited, it would not have been competent for the defendant to prove that the plaintiff had received a larger amount.

If it be otherwise (and perhaps it may be), when the goods credited are particularly specified, as they were in the case under consideration, the distinction depends altogether on the admission made by the plaintiff. By specifying the goods, he must be understood to admit that whatever they were reasonably worth might be deducted from the demand sued. On this ground, the defendant in the first suit might have been permitted to offer evidence as to the value of the goods credited; and it may be admitted also, that if such evidence had been offered by him and allowed, the judgment of the justice would have been conclusive.

But the defendant was not bound to avail himself of the plaintiff's admission or confession of payment. He was not bound to prove the value of the goods credited, at his own expense; when, by commencing his action, the expense would fall on the plaintiff, now the defendant. If the latter would have avoided this, he ought to have taken care to credit the goods at their full value.

Of this doctrine no one can reasonably doubt; for it stands or the same footing as the doctrine of tender. But different one, such as the present defendant contends for, would be ofter

(1) [Homer vs. Fish, 1 Pick. 435.-Loring vs. Mansfield, post, 34.-Gridley vs Harraden, 14 Mass. 496.—Thatcher vs. Gammon, 12 Mass. 268.—Flin vs. Sheldon, 13 Mass. 443-ED.]

MINOR OS. WALTER.

[* 239] productive of injustice. Suppose a case of mutual demands and credits between A and B; A's demand against B being twenty dollars, and B's demand against A thirty dollars. If A sues B, and credits B's demand of 30 dollars at only 15 dollars, how, upon the principles advanced by the defendant's counsel, can B recover his balance of A? He can recover no balance in A's suit; and if judgment in that suit is conclusive, he can have no remedy.

It is true, he may file his account, and claim a set-off, according to the statute. But that statute was never intended for such a case. It never was intended to compel any one to plead a set-off, and has never been so construed. Besides, a man may be sued when absent from home, and it may be impossible for him to avail himself of the statute; so that the grossest injustice, according to the defendant's doctrine, may be permitted and sanctioned by law.

Upon the whole, the Court are of opinion that the evidence offered by the plaintiff at the trial ought to have been admitted; and therefore that the nonsuit must be set aside, and a

New trial granted ‘(2).

(2) [Vide Dodge & Al. vs. Tileston & Al., 12 Pick 328.--ED.]

192

CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

FOR THE

COUNTIES OF HAMPSHIRE, FRANKLIN, AND HAMPDEN, SEPTEMBER TERM, 1821, AT NORTHAMPTON.

SAMUEL HOWE versus EZRA STARKWEATHER,
Treasurer, &c.

The general statute of 1804, c. 83,"directing the mode of attaching on mesne process, and selling by execution, shares of debtors in incorporated companies," was held to repeal a different provision for the same objects contained in a prior statute, incorporating a turnpike company.

ASSUMPSIT against the defendant, as treasurer of the Third Massachusetts Turnpike Corporation, for the amount of several dividends of the toll, accruing upon certain shares in the turnpike, of which the plaintiff claims to be the owner.

By the act establishing the said corporation (1), it is provided that the shares in the turnpike shall be taken, deemed and considered as personal estate to all intents and purposes. And such shares (1) Stat. 1796, c. 78, § 5.

VOL. XVII.

17

193

may be attached, and

HOWE US. STARKWEATHER.

"may be sold on execution, in the same manner as is or may by law be provided for the sale of personal property by execution; a copy of the execution and of the officer's return being left with the clerk of the corporation within ten days after the sale.

[* 241 ]

*

By the act "directing the mode of attaching on mesne process, and selling by execution, shares of debtors in incorporated companies" (2), particular directions are given as to the course to be pursued when any such shares are attached, and also when they are sold on execution; and by the fifth section it is enacted, "that the shares and interest held by any person or persons in any such company as aforesaid, may be attached on mesne process, and taken and sold on execution, in the manner provided by this act, and no other, any thing in the act incorporating such com pany to the contrary notwithstanding."

This action was referred to the determination of the Court upon an agreed statement of facts, in substance as follows.

On the 19th of November, 1811, and long before, Joseph Goodwin and Azariah Eggleston were joint owners of forty shares in the stock of the said corporation. In September, 1811, one William Bridge, having recovered judgment against the said Goodwin and certain other persons, caused his execution to be delivered to one Cady, then a coroner of the county of Berkshire, who sold Goodwin's moiety of the said shares to Thomas Gold, Esq., in the manner prescribed by law for the sale of personal property on execution, excepting that he levied the execution on the shares on the 19th of November, but did not sell them until the 30th of the same month; and twenty days thereafter, he lodged an attested copy of the execution and of his return with the treasurer of the corporation.

In February, 1817, one Estes Howe recovered a judgment against the said Goodwin and certain other persons, and caused his execution issued thereon to be delivered to one Fitch, then a deputy sheriff of the county of Hampshire, who sold Goodwin's said moiety of the said forty shares to the present plaintiff, conforming in the sale to the directions of the statute of 1804, c. 83, before men tioned.

[* 242 ] *Both the said executions, with the returns of the several officers, were duly recorded by the treasurer of

the corporation.

Since the service and return of the last execution, viz., in Oct. 1817, and Oct. 1818, two annual dividends of profits upon the shares in the turnpike have been declared by the directors of the corporation; which the treasurer was directed to pay over to the

HOWE vs. STARKWEATHER.

owners of the several shares upon demand, and was furnished with sufficient funds for that purpose. The defendant has been, during the whole period, the treasurer of the corporation. The dividend upon the moiety of the said forty shares has been demanded of him by the plaintiff; but the treasurer refused to pay the same, alleging the property of the said moiety to be in T. Gold, Esq., the purchaser under Bridge's execution.

If, in the opinion of the Court, Goodwin's interest in the said shares was legally transferred to Gold, by virtue of Bridge's execution, and the proceedings thereon, the plaintiff was to become nonsuit. But if, notwithstanding the said execution and proceedings, the property still remained in Goodwin, until the service of Howe's execution, and was by force of the same, and the proceedings thereon, transferred to, and vested in the plaintiff, the defend ant was to be defaulted, and judgment rendered for the plaintiff for one hundred dollars damage, with costs.

Gold, for the defendant, cited and relied upon the case of Tit comb vs. The Union and Marine Fire Insurance Company (3).

PARKER, C. J., delivered the opinion of the Court.

We think that the general statute of 1804, c. 83, ought to have been observed in making the sale upon the execution in favor of Bridge, notwithstanding the provision in the act establishing this turnpike corporation. For it was intended to have a retroactive operation; and the fifth section provides expressly, that a sale made in this way only shall be good, notwithstanding a different mode may have been provided in the several acts of incorporation.

*The case relied upon for the defendant to show that [* 243] the officer did right in pursuing the provisions of the act of incorporation, rather than those of the statute of 1804, does not maintain the position. The act of incorporation, referred to in the case cited, was enacted after the statute of 1804; and it was decided that a subsequent particular provision superseded a prior general one.

The sale under Bridge's execution, according to the case cited, would be bad also for another reason, viz., for suffering more than four days to elapse, between the seizure on execution and the sale. The officer took the shares on the 19th of the month, and did not sell them until the 30th. The statute of 1783, c. 57, directing the issuing, extending, and serving of executions, does not allow the officer to keep chattels, taken in execution, more than four days; if he does not sell them within that time, he must seize and adver tise anew

(3) 8 Mass. Rep. 327