
    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 , it is provided that the shares in the turnpike shall be taken, deemed and considered as uersonal estate to all intents and purposes. And such shares may be attached, and “ 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” , 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 pony 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 I9th 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 ‘hereafter, hé 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 upen the shares in the turnpike have been declared by the directors of the corporation; which the treasurer was directed to pay over to the 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 Titcomb vs. The Union and Marine Fire Insurance Company 
      .
    
      
      
        Stat. 1796, e. 78, § 5.
    
    
      
      g) Stat. 1804, c. 83.
    
    
      
       8 Mass. Rep. 327
    
   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 advertise anew

The sale to Gold, therefore, was not authorized by law; and the only question is, whether he, as a purchaser at public auction, can hold the shares notwithstanding.

Generally, a purchaser of chattels at a sheriff’s sale, having received the goods and paid for them, will have the property, not withstanding any irregularity in the proceedings of the officer making the sale. [8 Mass. Rep. 326.] Purchases would not be made, and the interests of both debtor and creditor would suffer, if sales made by one having lawful authority, and appearing to have exercised it lawfully, should be avoided on account of some irregularity, which could not be known at the time. Even in such cases, however, the return of the officer ought to show a compliance with the law, or the purchaser would be unable to maintain his property.

But shares in a turnpike, or other incorporated company, are not chattels. They have more resemblance to choses in action, being merely evidence of property. The sale of them upon execution not being justifiable at common law, the statute must be strictly pursued, to give any property to the purchaser. [ * 244 ] * If, under an irregular sale, certificates of the shares were given to the purchaser, the case would be more analogous to the sale of a chattel; for the delivery of the certificate would be like the delivery of the chattel, and the transfer might be considered complete. But even in that case, unless by the return of the officer upon the execution, it appeared that the requisitions of the law had been complied with, the corporation might not be justified in giving certificates to the purchaser.

In the case before us, there was nothing done to change the property, before the execution was levied, under which the plaintiff purchased. He is, therefore, entitled to recover the amount of the dividends.

Defendant defaulted  