
    * Jesse Goodenow versus Jonas Buttrick.
    The provincial act of 6 G. 2, c. 2, respecting an officer’s setting off cross execu tians against each other, is not repealed by the revised statute of 1783, c. 57, concerning the issuing and serving of executions.
    An officer, having an execution in favor of A against B and C, and another in favor of B against A, ought, if B consent, to set off one execution against the other.
    But where a coroner had an execution in favor of A B, against a deputy sheriff and another, and that other had an execution against A B, directed to the sheriff or his deputy, which he offered to the coroner, and requested him to set off one against the other; it was held that this was not a case within the act of 6 G. 2, c. 2, and that the coroner, Being a stranger to the last precept, was not obliged to receive it, nor to return it in any part satisfied.
    Where A obtains a judgment against B and C, and, at the same term, B recovers a judgment for a larger sum against A; if B will acknowledge satisfaction of the amount of A’s judgment against C and himself, in part of his judgment against A, the Court will stay A’s execution, and give B and C their execution for the balance.
    Trespass for taking and carrying away the plaintiff’s horse and chaise. The parties submitted the action to the opinion of the Court upon the following case: —
    “The said Buttrick, on the 10th of July, 1809, was one of the coroners for -the county of Middlesex, duly qualified to serve writs and executions ; and had committed to him, to levy and serve, a writ ot execution in favor of one William. Jeioall, against the plaintiff, who was a deputy sheriff, and one Ezekiel Gates, which issued on a judgment rendered in this Court April term. 1809, for the sum of 105 dollars; by virtue of which execution the said Buttrick took the said horse and chaise, kept, advertised, and sold the same, as the law requires; which is the same taking of which the plaintiff complains. On the same day of the taking the horse and chaise, the said Gates, having recovered judgment at the same term against the said Jewall, for the sum of 118 dollars, presented to the said Buttriclc, for service, a writ of execution, issued on the same judgment, directed to the sheriff of the said county of Middlesex; and the plaintiff and the said Gates requested the said Buttriclc to set off the execution first mentioned against the execution last mentioned, and offered him his fee for so doing; but the said Buttriclc refused so to do, and afterwards advertised and sold said horse and chaise as aforesaid.”
    
      Ward, for the plaintiff,
    cited the provincial act of 6 Geo. 2, c. 2, by the second section of which it is enacted, that “ when it shall happen that the sheriff, his deputy, or any coroner or constable, shall, at the same time, have several executions, wherein the creditor, in one execution, is debtor in the other, in such case such officer or officers are directed *to cause one execution [ * 141 ] to satisfy the other, as far as the same will extend.”
    And he contended that the provision did not require that the two executions should be directed to the same officer. Gates ought not to be exposed to hardships and inconvenience, because a co-debtor with him happened to be a deputy sheriff. The provision of the statute is remedial, and ought to have a liberal construction. The same mischief, which it was intended to remedy, existed in the present case.
    
      Bigelow, for the defendant,
    insisted that the execution never was delivered to the defendant, and if it had been he could not have served it, as it was not directed to him. He would have been a trespasser if he had attempted to make service of it.
    The statute plainly includes the case only of two executions in the hands of the same officer, and which such officer shall be legally qualified to serve. This was not the present case. It is also.very clear that the executions must be between the same parties. But here Gates alone was the creditor in one execution, and Gates and Goodenow the debtors in the other. And though this last point may have no great weight upon an equitable consideration, yet no construction ought to extend a statute beyond its plain language, and the end which the legislature had in contemplation at the passing of it.
    But whatever may be the legal or equitable construction of the act in question, it is repealed by the revised statute of 1783, c. 57, directing the issuing, extending, and serving, of executions. This statute provides for every case within the scope of its title; but the provision cited from the provincial act is not contained in it. Indeed, the second section gives to every judgment creditor a right to extend his execution upon his debtor’s land, and makes no provision for setting off cross executions against each other. It has been always considered that the revised statutes virtually repealed the old laws in pari materie, without any express clause of repeal.
    * Ward, in reply.
    The execution was offered to the defendant, and his‘refusing to take it forms for him no excuse, if he was legally bound to receive it.
    As to the objection, that here were not the same parties, Gates’s consent to set off his execution against Jewell’s, is a sufficient answer to it. Besides, the proviso, that the act shall not be construed to extend to any case wherein the creditor in one execution is not, in the same capacity and trust, debtor in the other, shows how far exceptions were contemplated, viz. where the party claimed in a different right; and there is no equitable nor legal reason why the remedy should not be coextensive with the mischief.
    A statute can never be said to be repealed, because the legislature in an after act has not seen fit to re-enact it. '
   The action was continued nisi for advisement, and at the November term following, in Suffolk, the opinion of the Court was delivered by

Pabsons, C. J.

The plaintiff, to maintain his action, relies on the second section of the provincial statute of 6 G. 2, c. 2. Upon this section two points have been made by the defendant; one is, that the section is not now in force; the other is, that, if it is in force, the true construction of it will not aid the plaintiff in supporting his action.

This provincial statute was unquestionably in force, until the ratification of the present constitution, which provides, in chapter 6, art. 6, for the further continuance of all laws then existing, until they should be altered or repealed*. It is not supposed that this provincial statute has been since expressly repealed ; but a revision, by the legislature, of the subject matter of it, has, it is said, virtually repealed it.

The provincial statute of 12 G. c. 4, expressly empowered coroners to appoint deputies; but in the statute of 1783, c. 43, revising the several laws relating to the power and duty of coroners, and entitled “An act describing the duty and powers of coroners,” the authority to appoint deputies is omitted; and in a case of Ingalls vs. Story, in the county of Essex, which was mentioned [ * 143 ] in the argument, the writ * was served by a deputy of the coroner; and exception being taken in abatement, it was holden that, after the passing of the last-mentioned statute the coroner could no longer appoint deputies, although there is no express repeal of any former acts, and the exception was allowed.

If the object of the revising statute of 1783, c. 57, entitled “An act directing the issuing, extending, and serving, of executions,” was to embrace all the antecedent laws, and to reduce them to one system, the case of Ingalls vs. Story will be in point. The first section of this last statute relates to the suing of executions, and the ascertaining of the times when they shall be returnable. The second section provides the manner of levying executions on lands at the creditor’s election; and the fifth section directs in what manner the officer shall proceed in the sale of goods and chattels seized on execution.

Upon this view of the statute, the object of it does not appear to comprise several provisions of the former laws, undoubtedly intended to be preserved. For no provision is here made for the levying of executions on the lands of deceased persons, for the payment of their debts; and for this purpose we must have recourse to the statute of 1783, c. 32, § 7. And as there is no provision for settling cross executions, we may reasonably presume that the provincial statute of 6 G. 2, c. 2, was not included in the revision.

If it be supposed that this statute was before the legislature when revising the laws, because the first section, relating to mutual book accounts, appears to have been revised in the twelfth section of the statute of 1784, c. 28, it may well be denied that this first section was the object of revision. For the same provision was reenacted in the temporary provincial statute of 16 G. 2, c. 5, with additional provisions, all of which are the subject of the twelfth section of the statute of 1784, c. 28. We are, therefore, of opinion that the second section of the provincial statute of 6 G. 2, c. 2, is in force, and not included among the provisions of the revised statute.

*The next point is the operation of this law upon the [ * 144 ] case at bar. The plaintiff would consider this provision so as to authorize sheriffs and coroners, in cases like the present, to serve either wholly or partially, and to return executions not directed to them, and which, by the existing laws, could not lawfully be directed to them; while the defendant’s construction will only introduce a new mode of satisfying cross executions, by officers already authorized to serve and return them. And we are of opinion that the last construction is the true one.

The act applies to cases, when it shall happen that the sheriff shall have cross executions, or when a coroner, or a constable, shall have cross executions; but neither the sheriff, coroner nor constable can be considered as having any executions, but such as are directed to them, and which they are obliged to obey; or, in other words, these officers must have these writs in their possession, as officers authorized and obliged to obey them.

The present case very rarely happens, and is not within this act, which, like other statutes, must be considered as adapted to the cases that more frequently occur. The defendant, a coroner, to whom the execution of Gates was not and could not regularly be directed, was not obliged to receive the same, nor to return it in any part satisfied, he being a stranger to the precept. The defendant must, therefore, have judgment and his costs. .

As these cross judgments were recovered in the same court, at the same term, and were final between the parties, the regular mode, in which Gates might have been relieved, would have been an application to the court to stay execution in Jewell’s suit against him, upon his acknowledging satisfaction of the amount of Jewell’s judgment against him and Goodenow, in part of his judgment against Jewell, and praying execution for the balance.

We do not consider the objection of any weight, that Goodenow and Gates are debtors on one execution, and Gates alone ( * 245 j creditor on the other; for Gates might satisfy *the execution against Goodenow and himself, and if he thought proper to apply his execution against Jetuell to that purpose, he might; and on Jewell’s execution being satisfied by Gates, the officer ought immediately to have redelivered to Goodenow his chattels, on being reimbursed his expenses.

Costs for the defendant.  