defendant by the corruption of the body and mind of the wife; for from that time she is less qualified to perform the duties of the marriage state. Then the question is, Whether this be an action on the case, or an action of trespass and assault? and it is said that the latter description only applies to personal assaults on the body of the plaintiff who sues : bat nothing of that sort is said in the statute. No doubt that an action of trespass and assault may be maintained by a master for the battery of his servant per quod servitium amisit; and so by a husband for a trespass and assault of this kind upon his wife per quod servitium amisit. Then it is said that the case of Cooke v. Sayer was decided on the supposition that it was an action on the case. It might be material to consider that point if the question now were, Whether the limitations of six or four years only applied to this case? but if the defendant take the longer period, and plead not guilty within four years; and the plea, not having been specially demurred to, is, therefore, good in either way of considering it. I do not know what my opinion would have been if the point had now first arisen, Whether to have considered this as an action on the case or of trespass? but it having been considered in Cooke v. Sayer as an action on the case, I should be inclined so to consider it. But whichever it be taken to be, the bar equally applies to it. 1805. MACFADZEN Lawrence, J. (a). At any rate, it would be going too far to say that there is no limitation whatever to such an action as the present; and if there be a limitation of it, it must either be of four or of six years; and then the objection to the plea is resolved into a mere matter of form, which cannot be taken advantage of on general demurrer, but upon the question, Whether an action of this kind be trespass or case? besides, the case which has been referred to of Cooke v. Sayer, and where it is to be observed that the plea was in the same form as the present, there was another case of Parker v. Ironfield in this Couit in Hil. Term 19 Geo. 3, in which the declaration charged, That the defendant, on the Ist of November, 1777, and on divers days and times between that day and the day of exhibiting the (a) Mr. Justice Grose was not present in court. plaintiff's against OLIVANT. [ 390 ] [ 391 ] 1805. MACFADZEN against OLIVANT. plaintiff's bill, made an assault upon Mary Parker, the daughter and servant of the plaintiff, and debauched Mary, and carnally knew her; whereby he was deprived of her service. And Mr. Justice Buller has written on the back of his paper book, " This is an action on the case, and not of trespass; and, therefore, divers days, &c. proper." And then there is this further indorsement on the paper book, "Declaration for debauching daughter, that defendant on divers times, &c. assaulted, &c. good; for this is an action on the case: aliter in trespass for assault (a).” He, therefore, certainly considered it as an action on the case, and not an action of trespass and assault; but leave was here given to withdraw the demurrer on payment of costs. LE BLANC, J. I had doubted whether the case just mentioned was decided on the ground of the nature of the action, having myself a very short note of it: but I considered that this was either an action on the case, or an action of trespass within the statute of limitations: for it would be very singular if this were to be considered as trespass of such a kind as to be taken out of so beneficial a statute; and in either way of considering it, the plea is a good bar. Judgment for the defendant. (a) Fide post, 395, English v. Purser. [392] Friday, May 17th. An auctioneer was employed CAPP against TOPHAM. ASSUMPSIT for money paid, laid out, and expended to sell an estate, by the plaintiff for the use of the defendant. Plea, the lowest price the general issue. At the trial at Lincoln, before Heath, J. a verdict was found for the plaintiff for 387. 15s. subject to owner, and writ- the opinion of this Court, on the following case : of which was fixed by the ten down by him on a piece of paper which was put under a candlestick at the time of sale, with the privity of the auctioneer, but not signed by the owner, nor any notice in writing given to the auctioneer of the price so set down, nor had the auctioneer given the previous notice of the sale to the collector of the duty, as required by the acts of the 11 G. 3, c. 56, and 28 G. 3, c. 37; but being asked at the sale, Whether he had taken the proper precautions to avoid the duty in case there were no sale? he said, That it was his mode to fix a price under the candlestick, and if the bidding did not come up to that price, it was no sale or duty; held, that the duty having attached, though there were no sale, for want of taking the precautions required of the owner by the statutes under such circumstances; and the auctioneer baving been sued for the duty on his bond to the crown, and compelled to pay it, he could not recover it over against the owner, he having warranted that proper precautions had been taken to prevent the duty attaching in the event, though both parties were mistaken in the law. The The plaintiff, an auctioneer, was employed by the defend. ant to sell by auction an estate belonging to him in Lincoln ; and the plaintiff, by the direction of the defendant, put the estate up to sale on the 27th of January, 1801. One of the conditions of sale was in these words: "That the vendor shall fix his price, and seal it up in a piece of paper; and if the biddings go beyond the price fixed, the estate shall be considered as sold; but if the biddings fall short of the sum so fixed on, the estate shall not be considered as sold." This was the auctioneer's own condition, and origi nally dictated by him; and adopted by him on this occasion as a proper mode to save the payment of the duty. The defendant's solicitor, who attended the sale previous to the commencement of the biddings, placed a ticket, with the privity of the auctioneer, containing the price in figures, and nothing more, under a candlestick on a table in the auction room. Bass, the defendant's unçle, was present at the sale, on behalf of the defendant, and asked the plaintiff If he had taken the proper precaution to avoid duty if there was no sale? The plaintiff said it was his mode to fix a price under the candlestick; and if the bidding did not come up to the price, it was no sale or duty. There were several biddings for the estate, but the highest was under the sum specified in the said ticket; and the estate was by the auctioneer declared to remain unsold. The plaintiff had not given three days notice of sale, and returned no sale. He was afterwards called upon by the collector of the excise to pay the duty, amounting to 291. on the highest bidding, which he refused to do; but afterwards, on an action at the suit of the king being brought against him upon his bond for non-performance of his duty as auctioneer, he paid, to compromise the action, 297. and 97. 15s. costs. The plaintiff, previous to any proceedings against him, called upon the defendant's solicitor, and informed him of the demand of the duty made by the collector of the excise, and frequently requested the payment of it; but he refused. No notice in writing was given to the plaintiff of the price set down in the ticket; but the defendant's solicitor told him what it was. The plaintiff had no notice in writing of any bidding intended on account of the vendor, other than the aforesaid ticket and the conditions of sale, which 1305. CAPP against TOPHAM [393] 1 1805. CAPP against [394] which was publicly read in the auction-room by the auc tioneer previous to the estate being put up to sale. At the time of the sale the defendant was a minor, and this the TOPBAM plaintiff knew; but he came of age before the money was paid by the plaintiff. The question for the opinion of the Court was, Whether the plaintiff were entitled to recover? Clarke, for the plaintiff, was proceeding to shew, That the auction duty had attached by the stitutes 19 Geo. 3, c. 56, and 28 Geo. 3, c. 37, s. 20 (a); no notice in writing having been given to the auctioneer previous to the sale; and the ticket put under the candlestick not having been signed by the vendor as required by the acts; and, therefore, that the plaintiff could not have resisted the action brought against him on his bond at the suit of the crown, he not having accounted for the duty: and then by s. 7 of the first act, the auctioneer may recover over from his employer the duties paid by him, and for which he is made chargeable by s. 6. And further, That the nonage of the defendant at the time of the sale could not render him less liable, the act having made no exception of that sort; but [395] LAWRENCE, J. observed, That there was another view of the case which did not appear to admit of any answer; for, notwithstanding there was a course in which the sale might have been so managed as that no duty would have attached under the circumstances, the duty was incurred by the blunder of the auctioneer, who undertook to conduct the auction properly, so as to avoid incurring the duty without a sale; and now he seeks to make his employer suffer for his own blunder. Clarke said in answer, That there was no warranty on the part of the auctioneer to be responsible for proper precautions to be taken to avoid the duty if there were no sale; though he were asked that question: but it was evidently a mistake of the law by all parties. Lord ELLENBOROUGH, C. J. Where there is mutual error, each must take the particular inconvenience on himself which results from his own error. But here the defendant, who knew nothing of the manner of conducting a sale, trusted to the plaintiff, whom he supposed competent to (a) Vide the material clauses of these acts set out in Cruso v. Crisp, Kast, 337 his business; and in answer to the question, Whether the plaintiff had taken the proper precautions (evidently meaning those which the acts of parliament pointed out) to avoid the duty if there were no sale? the plaintiff stated what his mode was (which mode was adopted); and he pledged, as it were, his experience, that, pursuing that mode, if there were no sale, there would be no duty attaching. He was mistaken in the law; and now he endeavours to make the defendant suffer for his own mistake. LAWRENCE, J. I think there is sufficient evidence in this case of warranty by the plaintiff, that no duty would attach on his mode of conducting the business if there were no sale. LE BLANC, J. agreed that there was evidence of such a warranty by the plaintiff. Postea to the defendants Reader was to have argued for the defendant. 1805. CAPP against TOPHAM ENGLISH against PURSER. Friday, the defendant and on divers IN N trespass and assault (a) the plaintiff declared that the A declaration, defendant on the 20th of October, 1803, and in divers charging that others days and times between that day and the day of ex- on such a day, hibiting the bill, with force and arms, made an assault on other days and the plaintiff, &c. To this there was a demurrer, assigning times, &c. made for special cause, that the plaintiff ought to have charged the assault to have been made on a day certain, and not on divers days. Lord ELLEN BOROUGH, C. J. when the case was called on, said, That this precise point had been ruled in Michell v. Neale (b), where this mode of declaring was holden bad on special demurrer. Wood, in support of the declaration, answered, That that case had been denied to be law by the Court of C. B. in a late case of Burgess v. Freelove, which he read from the report (c). VOL. VI. (a) Vide ante, 391, Parker v. Ironfield. X Lord an assault on the plaintiff, held bad on special demurrer; as one as. sault cannot be laid on different days. [396] |