
    Daniel Denny versus Sewall Hamilton.
    Under the statute of 1804, c. 83, § 6, an officer who had sold an equity ol redemp tian upon execution, was bound to pay over the surplus money arising from the sale, to another officer having an execution against the same debtor.
    The plaintiff, a deputy of the sheriff of this county, declares in case against the defendant, also, a deputy sheriff, alleging that one Stevens was indebted to him; for the recovery of which .debt he sued a writ of attachment directed to" any coroner of the county, which he delivered to W. Eaton, then such coroner, who, on the 12th day of * November, 1819, attached [*403] the said Stevens’s right in equity to redeem certain land before that time conveyed in mortgage upon the said writ; that, in December, 1819, he recovered judgment against Stevens for 179 dollars, 87 cents, damage, and 6 dollars, 50 cents, costs: that on the 21st of December, he sued out execution upon that judgment, and delivered it to the said Eaton, who, on the 7th of January, 1820, and within thirty days after judgment, took the said right in equity so by him attached, and advertised it for sale on the 7th of Febru arv fol-twing; that the defendant, Hamilton, on the 22d of January, having made an attachment of the said right in equity prior to that made by Eaton, took the same right, and sold it on execution, for the sum of 1540 dollars; that Eaton, having in his hands the plaintiff’s execution, notified the defendant thereof, and required him to pay the amount due on the same, or so much thereof as should remain in his the defendant’s hands, after satisfying all executions in his hands entitled to a priority to the plaintiffs; that there so remained in his hands a sum more than sufficient to satisfy the plaintiff’s execution, viz. &c. Yet the defendant, regardless of his duty in this particular, refused to pay over, &c., and applied the money to the payment of executions, which issued in actions, wherein the said right in equity was attached subsequently to the time of the attachment by Eaton. Whereby the plaintiff has lost the whole benefit of his judgment, Stevens being insolvent.
    The defendant pleads in bar, that he sold the right in equity as the plaintiff alleges; that he applied the proceeds, in the first instance, to satisfy one Corbet’s execution, whose attachment was prior to the plaintiff’s; and with the remainder he satisfied two other executions, then in his hands, against Stevens, not having such priority.
    To this plea the plaintiff demurs generally, and the defendant joins in demurrer.
    
      Newton, for the defendant,
    called on by the Court to sup- [ * 404 ] port the plea in bar, observed that the plaintiffs right * of action, if he had any, w*as grounded on the statute of 1804, c. 83, <§> 6. But it would be found, upon examining that section, that the plaintiffs case was not within it. The execution, to be satisfied from the surplus remaining in the officer’s hands, must be delivered to the same officer, and must be such a one as he could make service of. But the plaintiffs execution was not delivered nor tendered to the defendant; and if it had been, the defendant had no authority to serve it; for it was directed only to a coroner A point like this came up in the case of Goodenow vs. Buttrick 
      . It was upon a different act; but the principle there decided applies to the case at bar. The language of the two acts is very similar.
    The statute gives no direction to the officer to pay the money over to another officer. If the defendant had, in the case at bar, jiaid the money to Eaton, the coroner, he would thereby have assumed upon himself the responsibility for Eaton’s fidelity in paying over the money, and indeed for the correctness of his whole official conduct in the plaintiff’s suit; an obligation he was by no means pound 10 take upon himself. If the defendant was held to pay the money over at all, it should be to the creditor himself. But this he should not have done, in justice to Stevens, while the execution remained uncancelled.
    The statute of 1819, c. 212, passed since the facts in this case took place, was made to supply the defects in the former law ; and it shows plainly the sense of the legislature, that the statute of 1804 was not sufficient to support the plaintiff’s claim in the present suit.
    
      Lincoln, for the plaintiff.
    
      
       7 Mass. Rep. 140.
    
   Parker, C. J.,

delivered the opinion of the Court. The principal argument in support of the defendant’s plea is, that a fair con struction of the statute, which, in the sixth section, provides for the disposition of money arising from sales of rights in equity to redeem lands, shares in the stock of incorporated companies, and personal chattels, where there are several executions, requires that the executions * on which payment is claimed, should [ * 405 ] be directed and delivered to the officer who makes the • sale, that he may make his return thereon, in order to protect himself against the debtor.

But there is no express requisition in the statute to this effect, and the implication is strongly the other way. The object of the legislature seems to have been to secure all the creditors, according to priority, who shall have made an attachment, or have taken the property in execution. The property taken being incorporeal and intangible, it could not be known whether it was attached or not; and it would be unjust that a creditor, who had taken the measures prescribed by the statute in making his attachment, should be defeated of his security; because, in the event, it should turn out that another officer had taken the same measures, of which no public notice had been given, or was required by law to be given.

In the case of personal chattels attached, another creditor, who would make a second attachment, must do it by the same officer who made the first; because he has possession of the chattels, and the creditor, therefore, knows to whom to deliver his writ. But in the case of shares in the stock of incorporated companies, and rights in equity to redeem lands mortgaged, which are the subjects of the provision of the statute cited, there is no change of possession.

The statute provides for the case of an attachment upon mesne process, made by some other officer, when the execution shall be delivered to the officer who makes the sale ; and also for the case of an execution, on which the interest was taken, whether delivered to the same officer or not. In the latter case, he may protect himself by requiring a copy of the execution, on which the demand is made, and a receipt from the officer holding it; which will go to discharge him of the money, as well as his own return upon an execution _ would.

* It was suggested in the that because the legislature, by the statute of 1819, c. 212, has provided for the very case which this action exhibits, there was no remedy under the former statute. But statutes are often enacted to remove ambiguities, and to explain what might be considered doubtful. In such cases they are merely declaratory, and do not, of necessity, create a new remedy. It appears to us very clearly, that the first statute was sufficient for the case before us, and that the plea in bar to the action is insufficient.  