The opinion' of the court was delivered by
Ross, J.
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 *344directions to secure the debt, and attempted to serve it, it was his duty, without being specifically instructed to do so, to attach property, if openly visible, and if he neglected to do so, he would be liable for the damage. To this instruction, as well as to the neglect or refusal to comply with the requests, the defendant excepted.
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" court="Vt." date_filed="1838-02-15" href="https://app.midpage.ai/document/gates-v-gaines-6572053?utm_source=webapp" opinion_id="6572053">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.
*345II. The third request to charge relates to the contract of February 19, 1860, and is as follows : “ The contract of February 19, 1860, was unsusceptible of ratification so as to be operative to prevent the running of the Statute of Limitations ; but if that contract was susceptible of ratification, there is no evidence in the case tending to show- a ratification.” That contract was entered into on Sunday, and was introduced by the plaintiff to avoid the effect of the defendant’s plea of the Statute of Limitations, which apparently had become a bar to the plaintiff’s right of action. By that contract the defendant agrees that if the plaintiff will discontinue the suit on which he had failed to make the attachment, and will commence another suit against the same defendants, and therein summon certain persons as trustees, it shall not affect his liability for failure to make attachment of property on the first, and if he fail to collect his debt by the second suit, the defendant will remain liable to him in the same manner and to the same extent as though the first suit had proceeded to judgment and execution. In regard to this request the court in substance charged the jury that the contract, having been executed on Sunday, was not originally binding, and was inoperative to bar the Statute of.Limitations, unless afterwards ratified. If it was executed before sundown, and after that the parties talked the matter over, arranged to discontinue the first suit and to bring a new one, proceeded to make out another writ, and after 12 o’clock, to give notice of the discontinuance of the first suit, and to make service of the second writ, and that the defendant aided the officer in giving the notice and making the service because he was interested in the event of the second suit, and not because he was requested to do so by the plaintiff, it would be a ratification of that contract. In this, as well as the failure to comply with the request, the defendant insists there was error.
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 *346which fairly recognizes them as existing contracts, on a subsequent week day, like a promise to perform, or pay the amount stipulated therein, or a part payment of the same, or a refusal to return property fraudulently obtained by such contract, or an offer to rescind by the other party and a demand for the return of the property. Lovejoy v. Whipple, 18 Vt. 379" court="Vt." date_filed="1846-07-15" href="https://app.midpage.ai/document/lovejoy-v-whipple-6573410?utm_source=webapp" opinion_id="6573410">18 Vt. 379; Adams v. Gay, 19 Vt. 358" court="Vt." date_filed="1847-03-15" href="https://app.midpage.ai/document/adams-v-gay-6573629?utm_source=webapp" opinion_id="6573629">19 Vt. 358; Sargeant v. Butts, 21 Vt. 99" court="Vt." date_filed="1849-01-15" href="https://app.midpage.ai/document/sargeant-v-butts-6574024?utm_source=webapp" opinion_id="6574024">21 Vt. 99; Sumner v. Jones, 24 Vt. 317" court="Vt." date_filed="1852-03-15" href="https://app.midpage.ai/document/sumner-v-jones-6574782?utm_source=webapp" opinion_id="6574782">24 Vt. 317. These cases go the full length of holding that any act done by the parties on a week day which recognizes it as a contract existing between them, is a ratification. Under the charge of the court, and upon evidence tending to establish the same, the jury have found that after sundown, — the limit of the mala prohibida of that Sunday, — the parties talked up and arranged to discontinue the first suit, and to bring the second; went on and had the writ made, and immediately after 12 o’clock gave notice of the discontinuance of the first, and made service of the writ in the second, suit, the defendant therein aiding the officer because interested to secure thereby immunity from the consequences of his default in the service of the first writ. Under the decisions cited, we entertain no doubt but this was a ratification of the contract. In the cases cited the plaintiffs were relying upon the illegal but ratified contracts as the causes of action. In the case at bar, the plaintiff is not obliged to show the illegal contract to make out his cause of action, but interposes it only for the purpose of meeting the statute bar brought into the case by the defendant. Contracts executed on Sunday are not declared illegal. It is only the making of them at that particular time that is illegal. It is because thus tainted in regard to the time of their execution that the law refuses to enforce them, but leaves the parties where the contract places them. Whether it can be said that allowing the contract of February 19, 3860, to operate as a waiver of the Statute of Limitations is an enforcement of it may be questionable ; whether it is not rather leaving the parties in the exact positions in which by it they have put themselves, without an enforcement of it against either. But this point we are not compelled to, and do not, determine. On the other ground the exception is overruled.
*347III. The third point raised by the exceptions is in regard to the plaintiff’s manner of prosecuting the second suit, and its effect upon the plaintiff’s right of recovery. That suit was entered at the March Term, 1860. The defendants never appeared in the suits. The trustees appeared, and made disclosures the first time, and a commissioner was appointed. Witters was discharged at the next September Term. Ladd, the other trustee, disclosed that he had funds belonging to one of the defendants, but that they were claimed by Hotchkiss. Hotchkiss was ordered to be cited in as claimant. It does not appear whether he was in fact cited in. It does appear that he then, and until after Warner’s death in 1868, had a suit pending in Franklin County to recover the funds in the trustee’s hands. • Nothing further was done in the suit, except that defendant Warner’s death was suggested on the docket at the April Term, 1869,.and the suit was discontinued by reason of his death at the September Term, 1874. This suit was brought March 16, 1875. On this branch of the case, the defendant requested the court to charge, in substance, that under the contract of February 19,1860, it was the duty of the plaintiff, “ to prosecute the second suit with at least ordinary and reasonable diligence; and as it appears without dispute, that it was not prosecuted, and that if it had been, instead of being allowed to slumber on the docket for fourteen years, and until after the death of Warner, the trustee Ladd would have been adjudged chargeable for more than sufficient to satisfy the plaintiff’s claim— the breach of the contract on the part of the plaintiff is fully established.”
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 *348second suit, the defendant’s original liability, if any, would continue through the whole of that proceeding until the death of Warner was suggested upon the docket. If the plaintiff was guilty of negligence in the prosecution of that suit, he would still be entitled to recover nominal damages, provided the defendant, was originally liable.”
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 *349the jury to it in that character, instead of charging that it was optional with the plaintiff to have or not to have the defendants in that suit defaulted for non-appearance. Such failure to prosecute, especially when by the intervention of the death of Warner after such lapse of time, all chance of making the suit available for the purpose for which it was instituted, the relief of the defendant, was lost, cast the burden upon the plaintiff to show a reasonable excuse for his inaction. The only excuse claimed was, that Hotchkiss had a suit pending during all this period, in Franklin County, to determine his right to hold Hotchkiss for the funds in his hands. Whether this fact would lead an ordinarily prudent and vigilant man to delay prosecuting his own suit for such a length of time, was the real question for the jury to determine on this branch of the case. But the court failed to bring this phase of the case to the attention of the jury when its attention was called to this feature of the case.
For this error the judgment of the County Court is reversed, and the cause remanded.