51 Vt. 334 | Vt. | 1879
The opinion' of the court was delivered by
I. By his first and second requests the defendant contends that on the facts of the case the plaintiff has misconceived the form of action ; that it should have been contract rather than case ; that, being an authorized person, and not a regular officer, it was not negligence for him not to obey the command of the precept which he had undertaken to serve, and so fail to secure the plaintiff’s debt; that as he was under no obligation to receive the writ and undertake its service, his only duty to the plaintiff in making the service was that arising from the contract, express or • implied, under which he received it from the plaintiff; and that without distinct instructions to attach property he was under no legal obligation to do so. The court held and instructed the jury-that while the defendant was under no legal obligation to receive and serve the writ, if he did receive it from the plaintiff with
The defendant by accepting the writ accepted the special authorization thereon, and became for the purpose of serving the writ clothed with all the powers of a regular officer. His acts under the writ, and in accordance with the statute, bound all parties as effectually as though done by a regular officer. A sale of personal property by a person thus specially authorize*d on an execution agreeably to the provisions of law, is a valid sheriff’s sale, tranfers and protects the property, to the purchaser without change of possession. Gates v. Graines, 10 Vt. 346. He was pro hac vice an officer of the law. By accepting the authorization and writ, he bound himself to obey its precepts and discharge the duties imposed by it. Not by the plaintiff but by it, he was commanded and authorized to attach the property of the defendants therein named, if within his precinct. The plaintiff could waive the discharge of this duty, but the jury have found he did not. The defendant’s failure to attach property, as commanded by the writ, was an omission or neglect to discharge a duty to the plaintiff which the law, not a contract with the plaintiff, cast upon him. If the omission or neglect was injurious to the plaintiff, the defendant was liable therefor in an action on the case, because he had failed to discharge a duty imposed by the law, and not because he had broken any contract with the plaintiff. We think there was no error in the refusal of the court to charge as requested, nor in the charge as given, on this point. The motion' in arrest is mainly based on the position'assumed by the defendant that the action is misconceived. This position being untenable, we think there is no such lack of substance in the declaration as renders it insufficient on a motion in arrest. Every legal intendment is to be made' in favor of its sufficiency when thus attacked after verdict.
It is well settled in this State — whatever may be the decisions in other States — that the illegality which attaches to a contract executed on Sunday is not an illegality which enters into the subject-matter, or essence, of the contract, and for that reason renders it void : that such contracts only being illegal on account of the day on which they are made, are capable of ratification by any act
The court substantially complied with the first part of the request, telling the jury, “ it was the duty of the plaintiff to prosecute that suit with all reasonable dispatch, and in the manner in which suits are ordinarily conducted; and if he failed to do so he could at most only recover nominal damages ; but that being a trustee suit, it was optional with the plaintiff to have or not to have the principal debtors defaulted for non-appearance. We do not know whether or not the plaintiff’s claim against Ashley & Warner was secured by the summoning of Ladd as trustee.” “ If the plaintiff discharged his duty in the prosecution of the
It did appear, as stated in the request, that nothing was done in the suit after the appointment of the commissioner and making the order to cite in the claimant, until after the death of Warner, and so there was no prosecution of it during that time. But the inference attempted to be drawn, that if the suit had been prosecuted, Ladd would have been held chargeable, does not follow from anything which appears in the suit. So that the defendant was not entitled to have the request complied with as a whole. The request, however, called upon the court to give proper instructions upon the effect of the plaintiff’s failure to prosecute-the suit during the length of time stated. The court properly said that it was not known whether Ladd would have been held chargeable as trustee. Hence there was no error in this. It also said it was optional with the plaintiff to have or' not to have the principal debtors defaulted for non-appearance. This was so far true legally that his failure to have them defaulted did not operate to discontinue the suit. But it naturally carried to the jury, coming, as it did, in answer to the request, the import that by such failure the plaintiff was guilty of' no negligence or failure to discharge his duty towards the defendant in the prosecution- of the suit. In this we think there was error, and the charge was naturally calculated to mislead the jury to the defendant’s prejudice. The plaintiff, by accepting the defendant’s proposition to discontinue the first and bring the second suit, bound himself to use all reasonable efforts to make that suit available for payment of his debt. By his failure to go forward in the prosecution rapidly, he lost his chance to try the question of the liability of the trustee Ladd, and so of making the suit available to that end. Allowing the suit to slumber on the docket eight years, unexplained, was such evidence of negligence and a failure to pi'osecute the suit in due course of law, that the court should have called the attention of
For this error the judgment of the County Court is reversed, and the cause remanded.