Strong v. Birchard

Hosmer, Ch, J. The title of the defendant, by the levy of execution on the estate of Ide, and successive conveyances, is valid, if by the term months in the statute, is meant calendar months, and not lunar ; and if a person, under overseer, may appoint an appraiser, without his approval. In England, a month in law generally is considered a lunar month, or twenty-eight days; because it is a uniform period, and because it falls, naturally, into a quarterly division by weeks. Rex v. Peckham, Carth. 406. Rex v. Adderly, Doug. 462. Lacon & al. v. Hooper & al. 6 Term Rep. 224. 226. Castle & al. v. Burditt & al. 3 Term Rep. 623. 2 Black. Com. 141. Catesby's case, 6 Co. Rep. 62. And the same is the rule adopted in the state of New-York. Loving v. Halling, 15 Johns. Rep. 119. 120. But in cases of lapse and quare impedit, six months are construed to intend six calendar months; the computation in the ecclesiastical courts being by months of this description. Catesby's case, 6 Co. Rep. 62. When bills of exchange and promissory notes are payable in a certain number of months, calendar months are intended. Chilly on Bills, 542. 543. (5th Lond. ed.) Leffingwell & al. v. Pierpoint, 1 Johns Cas. 99. 100, Loring v. Halling, 15 Johns. Rep. 120. In the case of Lang v. Gale, 1 Maule & Selw. 111. it was determined, that the word month may mean lunar or calendar, according to the intention of the contracting parties. This fluctuation in the construction of a word, cannot fail to produce more uncertainty and incon [361] venience, than is countervailed by any imaginary benefit, when considering it as generally possessing one signification, but occationally admitting of another. Of this opinion, undoubtedly, was Lord Kenyon, who in Lacon & al. v. Hooper & al. 6 Term Rep. 226. expressed himself in the following terms: “ I confess, I wish that when the rule was first established, it had been decided, that months should be understood to mean calendar, and not lunar months; but the contrary has long been determined.” Uniformity in the construction of a word, not used technically, nor governed by the subject matter, is not only desireable, but unquestionably proper; and the popular meaning of a term used in a statute, made to be understood, and practised upon, by the people, is the only intendment that ought to be adopted. Upon this sound and obvious principle, in this state, as well as in the sister state of Massa husetts, the word month has invariably been expounded to mean calendar month ; that is, to mean what every one, not a lawyer by profession, believes the word to mean, Avery & al. v. Pixley, 4 Mass. Rep. 460. The point was solemnly decided by the superior court, in a case in which I was counsel, more than thirty years since. By the statute, in the edition of 1808. p. 384. the select-men are authorised, on summary enquiry, to appoint overseers of such persons as are likely to be reduced to want, by idleness, mismanagement, or bad husbandry ; and thereupon “no such person, while under such appointment, shall be able to make, any bargain or contract, without the consent of such overseer.” Is the appointment, by the debtor, of an appraiser on the execution against him, the making of a bargain or contract? Certainly not. The statute is not to be extended beyond the plain, meaning of the words used; but, as was said in Johnson v. Stanley & al. 1 Root 245. being “ against the general rights and liberties of the citizens ; it must, therefore, be cautiously and strictly pursued.” So in Chalker v. Chalker, 1 Conn. Rep. 79. 82. it was said, by this court, that the authority of an overseer, is “so liable to abuse, and so derogatory to the liberty of the subject, that it ought never to be extended beyond what is clearly warranted, by a strict construction of the statute.” By strictly expounding the words of the law, that is, “ bargain or contract,” they only mean, “ an agreement between two or more concerning something to be done, whereby both parties are bound to each other, or one is bound to the other,” 1 Pow. [362] on Cont. vi. When a debtor appoints a person an appraiser, by an act arbitrary, and without communication with any one what constituent of a contract, has this proceeding; and to novel agreement, who are the parties? There are no parties, and there is no agreement. The appointment of an appraiser, by an execution debtor, is no more a contract than the appointment of a sheriff, a commander of an army or navy, or any other like discretionary act ; nor was it ever so considered. The only bargain, if so it may be called, is the assent of the person designated to perform the duty implied; but by this, he comes under no obligation of contract to the person appointing, nor is that person under any obligation to him; but he is under the obligation of the law. To denominate this a contract, is in perversion both of the legal and popular meaning of the term. A person under an overseer, is not presumed to want capacity, as an idiot or lunatic is ; but he is considered as idle and improvident. When, however, there is a proceeding against him in invitum, to take from him his property, in satisfaction of a debt, what reason is there, for subjecting him to another, lest in the appointment of an appraiser, he should, through idleness, or want of caution or forethought, dilapidate his estate ? Here is no temptation to improvidence; and the placing him, in this respect, under the tutelage of a person much less interested than he is in the preservation of his property, would be an unnecessary and unreasonable abridgment of his personal rights. The statute contemplated no such privation of liberty ; and the mismanagement it intended to prevent, was only in the making of contracts, for which the habits of his mind, had disqualified him. The title acquired by the levy of the execution, in my opinion, was unquestionable ; and therefore a new trial ought to be granted. Peters, Brainard and Bristol, Js. were of the same opinion. New trial to be granted.