Mix v. Peck ( 1839 )

Sherman, J.

This is an action of trespass for taking personal property. The only question is that of title. The plaintiff claims under a sale to him by Herman Wooding, made on the 22nd of September. 1837. The title of Wooding, at r that time, is admitted. After this sale, the property was attached, and regularly disposed of, by William Peck, one of the defendants, a creditor of Wooding. The title of the plaintiff is denied, on the ground, that, at the time of the sale, Wooding was under an overseer; in which condition the statute provides, that “ no person shall be capable of making a contract without his consent.” Slat. 276. tit. 49. s. 6.

The act precludes any claim by the plaintiff, if the appointment of the overseer was regular, and the evidence sufficient which was adduced to prove it. The disability imposed is general; and no necessity, of which the overseer is legally competent and able to judge, will make a contract valid, without hi§ assent. That which is urged, by the plaintiff, arising from the imprisonment of Wooding and his want of bail, was very proper for the consideration of this overseer, and did not dispense with the salutary restraints of the statute.

The appointment is in proper form ; and the duplicate shewn on the trial was competent evidence to prove it. The causes assigned for the appointment, are those which the statute expressly specifies.

The residence of Wooding was in Cheshire ; and he was subject to the inspection of the select-men, notwithstanding the custody of the officer.

The validity of the appointment could not be affected, by the appeal, without any action of the county court; nor had the revocation, by the select-men, any such retroactive power as to give validity, against an intervening attaching creditor, to contracts previously void ; nor was the refusal of Wooding to submit to the appointment, or the assent of the overseer to the sale, after the attachment, of any avail. All evidence of these facts was justly excluded by the court.

No improper omission or error is perceived in the charge given to the jury.

We should not advise a new trial.

In this opinion the other Judges concurred.

New trial not to be granted.