majority">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 *505rent, as it was done with the consent of the plaintiff. And although some doubt seems to have been intimated whether the written undertaking expressed on its face a sufficient consideration to render it available as a contract, it was considered to be a clear justification to the sheriff, whether valid or invalid as a contract. And the opinion concludes by saying, “In future, it will be better for landlords to have their rent before they suffer their tenants’ goods to be sold in execution; but if they will give trust, they cannot afterwards resort to an action on this statute against the sheriff.”

According to the decision in that case, if the jury believed the present plaintiff consented to the sale under the circumstances stated in the prayer, it operated in law as a waiver of his right t,o sue under the statute. And to render such waiver available to the defence, it was not necessary the jury should be required to believe, that in point of fact the plaintiff had actually waived the right so to sue. Submitting such ail enquiry to them was therefore erroneous. Instead of tending to enlighten the jury, the proviso or qualification was well calculated to embarrass and mislead them, by requiring them not only to find the facts submitted in the prayer, but also that the plaintiff had actually waived his rights. Granting the prayer, with the qualification, was a virtual rejection of it as presented, and equivalent to saying to the jury, although they might believe every thing submitted therein to be true, yet such belief could avail nothing to the defendant unless they should also find it to be true, in fact, that the plaintiff had waived his rights under the statute and relied upon the promise of the sheriff.

In regard to what may or may not render a sheriff liable to a landlord for rent under the statute, see Smith vs. Russell, 3 Taunt., 401. White vs. Binstead & Prebble, 20 Eng. Law and Eq. Rep., 212; and Smallman vs. Pollard, 6 Man. & Gran., in 46 Eng. Com. Law, 1001.

Judgment reversed and procedendo awarded.

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