Cloud v. Needles

Eccleston, J., delivered the opinion of this court. The court refused to grant the first, second and third prayers offered on the part of the.defendant, but such refusal not being excepted to, those prayers are not before us. The defendant’s fourth prayer is, “That the plaintiff is not entitled to recover in this action if the jury shall find from the evidence that the sheriff, or his officer, promised the plaintiff, or his agent, after the levy and before the sale of the goods taken in execution by the sheriff in the case against the tenant, to pay the amount of rent claimed by the plaintiff; and if they further find that the plaintiff consented to said sale.” This prayer was granted by the court with the following proviso or qualification: “Provided the jury believe, that in making such assent the plaintiff waived, in virtue of this agreement, his rights as asserted in the claim and notice offered in evidence, and relied upon the promise of the sheriff, referred to in this prayer.” To this action by the court the defendant excepted. Rotherey vs. Wood & Atkins, 3 Camp.

Rep., 24, was a suit like the present against a sheriff, under the statute of 8 Anne, ch. 14, sec. 1, for taking in execution the goods and chattels of a tenant to the plaintiff without payibg the rent due on the lease. There the sheriff received regular notice from an agent of the plaintiff that a year’s rent was due; but the same agent took from the sheriff’s bailiff and auctioneer a written agreement or undertaking in these words: “We undertake to pay Mr. Rotherey one twelve-months’ rent for the premises occupied by Mr. Clarkson if so much rent appears to be due.” The goods were then sold with the consent of the plaintiff’s agent, but the rent was not paid. Lord Ellenborough held, the plaintiff bad waived the benefit of the statute, and that no tort hud been committed by the sheriff in taking the goods in execution without first paying the ⁵⁰⁵ rent, as it was done with the consent of the