Ex.]

HORSFALL AND OTHERS V. THOMAS.

is clear that the question is, whether, assuming that
the board carry on the works in a negligent manner
and cause damage, such damage is the subject of an
action, or whether the person who suffers damage
must have recourse to the clauses of the Act relating
to compensation, the only question being whether the
board would be liable. I entirely agree that an action
under such circumstances can be maintained.
Rule discharged.

COURT OF EXCHEQUER. Reported by F. BAILEY, and H. LEIGH, Esqrs., Barristersat-Law.

May 1, 2 and 5.

HORSFALL AND OTHERS V. THOMAS. Assumpsit-Action on bill of exchange-Plea of fraud-Bill given in consequence of fraudulent representation-Evidence for jury in support of plea-Misdirection-Duty of manufacturer of a chattel as to informing purchaser of a defect therein-Caveat emptor.

certain gun manufactured and supplied p deft., upon the express condition that if it bars me trial it was not to be paid for. Ave after accepting the said bill of exchange, and the same became due, the said gun was suppledate deft., and burst under trial. And save as th there never was any consideration for the said plts. always held the same without consideration. I Further to first count, that said bill was acceptedit deft. and delivered to plts. in part payment of the pr of a gun to be thereafter supplied by pits, to be of a quality and description agreed upon betre and deft. Averment of default in supplying to t gun of the quality and description agreed that plts. in lieu thereof supplied a gun of construction and of a quality wholly inferior to agreed upon, and of no value whatever: that the soi gun burst upon trial before the said bill became te and always was and is wholly useless, and of no r whatever, whereby the consideration for suid wholly failed. Averment of no other consideratia s in first plea. 3. Further to first count, that deft. Action by drawer against acceptor of a bill of ex-induced to accept the said bill by the fraud, cori na change; plea, that the bill had been obtained by fraud. The case opened and partially proved at the trial was, that plts. had contracted to make a gun for deft., for which deft. was to pay, on delivery, by a bill of exchange. When the gun was made, notice was given to deft. that it was ready, and it was delivered to him, and the acceptance given in payment, without deft. having, as he might, had he chosen to do, previously examined the interior of the gun. It appeared also, from counsel's opening, that there was a defect in the interior of the gun, to conceal which a plug had been inserted in the breech by plts., or by their workmen, so as to conceal the defect from any person inspecting the gun. On being received by deft. it was fired several times, with great success; but subsequently and, as was alleged, owing to the said defect, it burst and became worthless. Upon this statement being made by counsel in his opening, and partially proved, the Lord Chief Baron was of opinion there was no evidence to go to the jury in support of the plea of fraud, and a verdict was thereupon found for plts. for the amount of the bill. Upon a rule nisi for a new trial being obtained on the ground of misdirection, it was Held (by Pollock C.B., Martin and Bramwell, BB., discharging the rule), that the Lord Chief Baron was right in the view which he took of the case at the trial, and that there was no evidence to go to the jury in support of the deft.'s plea of fraud. The general proposition, that the maker of a chattel is guilty of fraud if he conceals the knowledge of a defect, in such chattel, from the person for whom it is made, that person not having inspected the chattel, is not maintainable, and it would be very mischievous if it were so.

misrepresentation of plts. and others in colla them. 4. To residue of declaration, never in 5. To the whole declaration, payment. 6. Setmoney lent, money paid, money received, work and terials, and on account stated. Issues thereo Plts. carry on extensive ironworks at Live under the firm of the Mersey Steel and Iron Copers having obtained a reputation for the manufact? "puddled steel," for which they hold a patent. is a gentleman of scientific attainments, and the ventor of a piece of ordnance, which he clas superior to anything hitherto known. Being des of having a gun on his principle manufactured a "puddled steel," he applied to plts. to make m and after various negotiations it was arranged plts. should do so, and that it should be paid fit a delivery, by acceptances of 2337. 10s. each, pr six and twelve months date respectively; and t Government had guaranteed to pay deft. his expe if the invention were successful, he promised p that if his expenses were paid him before the became due he would take them up. The steel g for the gun (i. e. the solid mass) was according menced, from a drawing furnished by deft., so in Sept 1859, and in October the boring was beg process which occupied, with interruptions, a peri nearly three months; during which time defe casionally visited Liverpool, and saw the progres the work, but could not examine the interwarf gun, because it was undergoing the process of vis bored. In Jan. 1850 a correspondence took p between plts. and deft. with respect to certai which appeared in the core of the solid mass. said, on the plts.' part, that there was, in th nature of steel forging, a liability to flaws Wi skill could obviate, as they arise from the condens If it be a defect known to the manufacturer, and of the metal in cooling, and were principali te which cannot be seen on inspection, then he would the centre, which cools last, and that, as the center be bound to point it out to the purchaser; but bored out for the reception of the charge, the flawy if it be a patent defect, and one of which the not material unless they extended too far from the c purchaser is as good a judge as the maker, In order to remove them entirely in the present the latter is not bound to point it out, and in the bore was increased from its original size of that sense the maxim caveat emptor" applies, as to seven inches, at plts.' suggestion. On 2 much to the case of a person having an article made however, plts., by letter, informed deft, that for him, as to the purchaser of a thing already in were not all bored out, and proposed crease the bore, to which deft. objected, not de to increase the bere beyond

existence.

Declaration. First count by plts. as drawers against

plts. clain 500%.

to further

seven inches, and espec

deft. as acceptor of a bill of exchange at twelve as he was, in that same letter, assured by the p months after date for 2331. 10s. Second count, for the flaws in question would not impair the goods sold and delivered and on account stated. And or utility of the gun. The gun was completed change was given in part payment of the price of a plts. drew on deft. two bills, dated 2nd Jay Pleas:-1. To first count, that the said bill of ex- tested by the authorities, on 5th July 186

sent by plts. to

Woolwich for the purpose

Ex.]

HORSFALL AND OTHERS v. THOMAS.

At the trial before the Lord Chief Baron on the 18th Feb. last, at Guildhall, upon the above statements being made by deft.'s counsel in opening his case, and partially proved in evidence, the learned Chief Baron stopped the case, being of opinion that there was no evidence for the jury in support of deft.'s plea of fraud, whereupon a verdict was found for the plts. for the full amount of the bill.

[Ex.

or 2331. 10s. each, at six and twelve months | consideration. Bat deft. relied on the third plea. espectively, which deft. accepted. On the 17th A fraud was committed in the making of the gun; uly plts. wrote to one Yates, their London there was a fraudulent concealment of a defect from gent, desiring him to inform deft. that the deft., and an intimation to him that the gun was weight of the gun was six tons, twelve cwt. and ready. [POLLOCK, C. B.-Obtaining a bill by express ne quarter, and that "it was of the best metal all fraud is a very different thing from giving a bill in hrough, and had no weak points that plts. were aware payment of a contract which was fraudulent, or in the f." On the 22nd Sept. the gun was tried with a execution of which there may have been some fraud. hell of 174lbs. and 25lbs. of powder, which partial MARTIN, B.-In an action for the price and use of a rial seems to have answered, the shell being thrown a chattel bought at a specified price, would fraud in the istance of nearly six miles in about thirty-eight performance of the contract be any defence ?] Since econds. On the 26th Sept. it was again tried with a Street v. Blay, 2 B. & Ad. 456, and Poulton v. proof-charge of 28lbs., which it bore without the sign Lattimore, 9 B. & C. 259, it was clear there would be of a strain, and in October deft. received the Govern- a right to reduce the damages. This was not a connent report, certifying the great range which the gun tract for a specific article in existence, but for one to ad accomplished, and deft., on the 22nd and again on be manufactured; and it has been manufactured he 26th Sept., wrote to plts. expressing his gratifica- not in compliance with the contract. Deft. took ion at the success which the gun had attained. The it believing it to be in compliance with the conirst bill became due on the 5th Jan. 1861, and was tract, and plt. delivered it knowing it not to be so; and saken up by deft. on the 25th. The Government de- deft. gave his acceptance for it under that belief. siring to have the gun further experimented on, it was [WILDE, B.-Do Street v. Blay, and the other cases again tried in June 1861. It stood six rounds on that which allow the price to be cut down by reason of a occasion with charges of 21, 23 and 24 lbs. of powder, defect, apply to an action on a bill? MARTIN, B.out on the seventh round being fired with a charge of On a bill you must have all or none-no partial failure of 25lbs. it burst into fragments. The deft. alleged that, consideration can be shown.] Were the case clear of fraud upon examination of the fragments, it appeared that the that might be so; but the question was, were the plts. gun was not "of the best metal all through," and was entitled to sue on a contract into which they had innot in one piece as it ought to have been; and that there duced deft. to enter by a fraudulent representation? was a weak part in the breech, which was soft and [BRAMWELL, B.-Suppose no plug had been put in, spongy, which had been concealed by being plugged by would there have been fraud then in obtaining the the insertion of a separate piece of metal inside the bill?] That would have been a different case. bore of the gun. [BRAMWELL, B.-If there would have been no fraud in that case, then, if deft. did not know of the plug, how is that fraud? Deft. admits he did not see the gun so as to be affected by the concealment. WILDE, B.What Bramwell, B. says is worthy of consideration. You gave the bill not seeing the gun, and would have given it whether plugged or not.] The steps in the argument were these: a contract to make a gun with care-the gun made in breach of that contract-defect known to plt. and concealed from deft.; that was a virtual fraud. Fraud may be by acts as well as by statement-e.g., the case of the man at Oxford going to shops in the dress of a gentleman commoner, and thereby obtaining goods. [MARTIN, B. referred to Mondel v. Steel, 8 M. & W. 858; s. c. 11 L. J., N. S., 91, Ex.] The observations of Parke, B. in Grounsell v. Lamb, 1 M. & W. 352; s. c. 5 L. J., N. S., 154, Ex., apply here. The fraud here disqualified plt. from recovering on the bill. The cases show if the article was kept a new contract to pay for it was raised-fraud rendered a contract, not void but voidable. The rule was correctly stated in Campbell v. Fleming, 1 A. & E. 40 ; s. c. 3 L. J., N. S., 156, K. B. [BRAMWELL, B.-Suppose there had been no bill of exchange, on discovery of the fraud you should have elected to rescind or not. You do not rescind, but keep the article. Could not plt. then sue for the contract price?] It was supposed that he could do so. [BRAMWELL, B.-Then why may he not do so now, when the contract price is a bill of exchange? [WILDE, B. referred to Lewis v. Cosgrave, 2 Taunt. 2.1 Assuming that what was opened were proved, it was submitted that there was evidence that the bill was obtained by a fraudulent representation, which deft. believed, and which would be a complete answer to the action, although deft. might be liable on goods sold and delivered to the amount to which plts. may prove the gun was of value to the deft.: (Clark v. Dickson, 1 El. Bl. & El. 148; and Solomon v. Solomon, 1 Stark. 5, cited in Byles on Bills, 7th edit. p. 113, were also referred to.) Cur. adv. vult.

Bovill, Q.C. (April 16) obtained a rule nisi to set aside the verdict and for a new trial, on the ground of misdirection of the learned judge in stopping the case and directing the jury that the facts opened and proposed to be proved, viz. that the gun had been knowingly, intentionally and fraudulently plugged, would not be any defence to the action on the bill; against which rule

May 1.-E. James, Q.C., Brett, Q.C., and Aspinall showed cause.

May 2.-Bovill, Q.C. and Honyman (with whom was Lush, Q.C.) contra, in support of their rule.-The material plea was the third plea. It was stated in the opening of deft.'s case at the trial, that deft. had a body of evidence to show that the defect was known to plts., and that the plug was put in to conceal it. [POLLOCK, C.B.-I ruled that, even if right in fact, that was not the way in which to meet an action on a bill. MARTIN, B.-The question is, whether, if you proved all you opened, there was any evidence for the jury of fraud?] No doubt, as the Lord Chief Baron said at the trial, what plts. undertook to supply was a gun, but plts. were bound to exercise proper care in its construction, just as a tailor with whom there was an implied contract to supply a coat of good materials. [POLLOCK, C. B.-The gun answered its purpose; it carried a shot a remarkable distance. You can only make out your defence to this action if you are entitled to retain the materials, and not pay a farthing for the gun. WILDE, B.-If a horse is sold and used for a month, and it is then discovered to have been sold on a fraudulent representation, may not the contract be rescinded, and may not the horse be returned, though he be not in the same condition as when bought ?] The difficulty put by the Chief Baron at the trial was felt as regarded the plea of failure of the entire

May 5.-BRAMWELL, B. now delivered the judgment of the court (Pollock, C. B., Martin and Bramwell, BB.) as follows:-The facts necessary for me to refer to in delivering our judgment in this case may be

Ex.]

thus stated.

It was an action on a bill of exchange | instance, the maker of the chattel is guilty of fraud
We are of opinion that no such proposition on le
affirmed, and it would be very mischievous iften
so. The fraud must be committed by the af
of something not true, with the knowledge of the
affirmant, or by the suppression of something what's
true and which it was his duty to make known,
if it is correct, seems impossible. Here no deal the
was no assertion of any untruth; the only sin
would be whether there was a suppression of airing
the plts., the makers, were bound to make kner b
the deft. There is a good rule of law and good wre.
caveat emptor, which is as much applicable to the case
of a person having an article made for bim as to the
purchase of a thing already in existence.
MARTIN, B.-No.

by the drawers against the acceptor. The plea averred
that the bill had been obtained by fraud, and the case
opened and partially proved by the deft. was this: the
deft. had contracted with the plts. that they should
make a gun for the deft., and the deft. was to pay for
that gun by a bill of exchange. The gun was made,
and notice was given to the deft. that the gun was
ready; he made no examination; then the plts. re-
mitted the bill of exchange in question, which is one of
the bills of exchange by which, in conformity with
the contract, the gun was to be payed for. In point of
fact, according to the opening of the learned counsel
for the deft., Mr. Honyman, there was in the gun a
defect which he stated, and which, for the purposes of
the present decision, we may assume was such a defect
as to justify the deft., had he known of it, in rejecting BRAMWELL, B.-My brother Martin corrects me. I
the gun. Further, according to the opening, there had know caveat emptor, in a sense, may be misunderst
been something done by the makers of the gun (that I do not mean to say that it applies, in all cases,
is, by the plts.' or one of the plts.' workmen) which the case of a person who is to have an article s
would conceal this defect from any person inspecting for him, because he may reject it if it is not in e-
the gun.
The gun was received by the deft. and was formity with the agreement. If it means that it is
fired several times, and answered extremely well, so applicable to the consideration of whether he shou
long as it continued entire ; but, as it was said, through accept it or not, the maker of the article is not bo
those defects it afterwards burst and became worth- to point out the defect in it to the purchaser: if t
less. My Lord, upon this statement being made and a defect known to the manufacturer, and which ca
partially proved, was of opinion that there was no evi- be seen on inspection, then indeed be would be bami
dence to go to the jury in support of the plea to point it out; but if it is a defect which is p
of fraud. A rule nisi was moved for and was and of which the purchaser is as good a judge st
obtained. The question before us was whether there maker, it is clear to my mind in that case the mas
was evidence to go to the jury in support of that is not bound to point out the defect to the parch
plea; and we are of opinion that there was not, and I think it would be a very mischievous thing if it
that my Lord was quite right in the view he took of so, because, if he was bound to point out the defect le
the case.
First of all, the matter much relied on (and would be bound, in safety, to point out anything
which certainly struck me very much at chambers could be considered a defect; we know the consequ
when the matter was mentioned to me with a view to of that. If the maker says, for prudence sake, "I
stay execution) was, that the plts. or their workmen point out so and so to you, but I do not think th
had done something to conceal this alleged defect in the defects," the purchaser would say, "Here is something
gun; and it turned out, on investigation, that the act wrong, and I must have an abatement made." The
so done (which we may, for the purposes of this motion, would be a very inconvenient rule, which should be
assume there was evidence had been done for a fraudu no existence. The thing may be tested in this
lent purpose) had been so done, and the matter had Suppose the deft. had gone down and looked at s
never been under the observation of the deft. in any gun, and seen the defect in it, I do not think t
way; that is to say, he had never seen the gun since the would have been any fraud then; or suppose he
defect had been so concealed as alleged, and it was rejected it, there would have been no fraud then;
impossible therefore that this attempt at concealment suppose he had not
seen it, would there tha
should have had any operation on his mind or his con- have been any fraud?
It all rests upon this, th
duct in any way.
If the plug had not been there, the fraud of the seller of the article depends on the
which it was said had been put in to conceal the defect, more or less skill and diligence of the person
his conduct would have been just the same, because, whom the article is made; because, if he have suf
as he did not see the gun or form any opinion upon the cient knowledge of the matter, and diligence to p
condition of the gun, the condition of the gun was a that knowledge to good use, by the supposition.
matter of no consequence. I do not rely upon that, but would have found it out, because this, it seems
Mr. Honyman is compelled to concede this, so far as the patent defect. It seems, therefore, impossible tast
question whether there was evidence to show that the that a man can be guilty of a fraud where the p
bill had been obtained by fraud is concerned, that this son for whom the article is made inspects it,
question of the plug having been put in to conceal the either does or does not discover the defect, and ther
defect might have been left out of consideration. He takes it or rejects it, as the case may be. If it w
was compelled therefore to say this, that the plts. not be a fraud when he has inspected it, then is
having told the deft. that the gun was ready, they, fraud that, having the opportunity of inspecting it
knowing that there was in it a defect which would very does not do so? That would be to make the fra at
much impair its value and make it worthless, the plts. clearly as anything ever was in this world, depen
were guilty of a fraud in making that statement to upon his having the sense and prudence to examine the
the deft. knowing of the existence of that defect. We article and judge for himself, instead of taking it wa
are of opinion that that proposition is not maintainable. out looking at it. This consideration seems to
If it is true in that sense, it is true in every sense. own, to show, as a matter of demonstr
Then we are called on, therefore, by the arguments of that the maker of the article is not guy
Mr. Bovill and Mr. Honyman, to affirm this general a fraud where, there being
proposition, that whenever a man makes a chattel for in it, he simply does not tell the intended
another, and makes it with a defect in it, which is, if of it, but says, "There it is for you, and
you please, either a serious detriment to its value, or I can come and look at it if you like;" but he does
even renders it worthless, or may render it worthless; think fit to do so.

a patent delet

But that was all the frond if the maker of the chattel conceals the knowledge of relied on in this particular case. We are all case s

it from the person for whom it is made, that person opinion, therefore, that my Lord was quite right and not having inspected the chattel so made, we are called that there was no evidence to go to the jury in spr

upon to affirm the general proposition that, in that of the plea of fraud. We think, therefore, the rat

for

ght to be discharged. My brother Wilde did not
ear the whole of the argument, and therefore he does
ot give any opinion upon the case.
POLLOCK, C. B.-I entirely concur in the opinion
y brother Bramwell has expressed.

Bovill, Q.C.-Will your Lordships allow us an appeal
this case? The point was not reserved.
POLLOCK, C.B.-There is a cross-action, in which
stice may be done. Why should there be an appeal?
BRAMWELL, B.—I own, Mr. Bovill, from the case
together, I thought there was but very little hope of
aking the rule absolute. I thought, in fact, it was
ot worth while.

MARTIN, B.-I cannot say that that did not operate
my mind too. I think there is not sufficient ground
give leave to appeal.

Rule discharged, and leave to appeal refused. Plts.' attorneys, Messrs. Norris and Allen, 20, Bed-rd-row.

Deft.'s attorneys, Messrs. Thomas and Hollams, fincing-lane.

May 12 and 29.

MEDWAY v. GILBERT.

Practice—Judgment of non pros.—When to be signed -C. L. P. A. 1852-Four days' notice to declare, fc. under sect. 53—When it may be given-Vacation and Term time.

[Ex.

bound by the result of the verdict in the action against the acceptors; the acceptors to admit the acceptance, and that plt. should be at liberty to sign judgment for debt and costs against the drawer (the deft. Gilbert), if he should obtain judgment against the acceptors." Notice of trial in the said action against the acceptors was given for the second sittings in last Michaelmas Term, and the cause was duly entered and was in the paper for hearing on 20th Nov. last, but no counsel appeared on the occasion for plt. The following arrangement was ultimately come to between the plt.'s attorney and the counsel and attorney of the defts. Milner and Tucker :-That the record should be withdrawn, the bill of exchange be given up to defts. (the acceptors), the sum of 10l. to be paid for defts.' costs, and that a stet processus should be entered in the said action against the acceptors.

On the 26th Nov., and after the aforesaid arrangement in the action against the acceptors, the attorney for deft. Gilbert applied to plt.'s attorney, to know if plt. would, without any further proceedings, pay deft. Gilbert's costs of the present action; but though he wrote two subsequent letters on the same subject on 2nd and 3rd Dec., he obtained no definitereply to his application. On the 16th Dec. he took out a summons to show cause why plt. should not pay the costs of Gilbert's defence to this action, but Bramwell, B. declined to make any order thereupon,. eparate actions by the same plt. against the drawer saying, that although deft. was bound by Martin, B.'s and acceptors of a bill of exchange were, on 19th order of 19th Oct. in case of plt.'s obtaining a verdict Oct., consolidated by judge's order, directing the in the other action, the plt. was not so bound, and action against the acceptors to proceed, and that had a right to proceed. Having heard nothing further plt., if successful therein, should be at liberty to from plt.'s attorney, and no declaration having been delisign judgment against the drawer. Upon the action vered, deft.'s attorney, on the 24th Dec. last, gave the against the acceptors coming on for trial on the usual notice under sect. 53 C. L. P. A. 1852, requiring. 20th Nov., the record was withdrawn, and a stet plt. to declare within four days; and no attention processus was entered, and thereupon the above- having been paid by plt.'s attorney to the said named deft. (the drawer), on 24th Dec., gave the notice, nor to a subsequent admonitory letter of the usual four days' notice to declare under sect. 53 3rd Jan., deft.'s attorney, on the 15th Jan. last, signed C. L. P. A. 1852, and on 15th Jan. signed judg-judgment of non pros. Upon an application at ment of non pros., which was afterwards set chainbers, Channell, B., after hearing the matter disaside by order of Channell, B., on the ground that cussed before him on several occasions, ultimately, on it was signed too soon. Upon a rule being obtained 25th Feb. last, made an order setting the said judgto rescind such last-mentioned order, it was ment of non pros. aside, upon the ground that the Held (discharging the rule), that the order of Channell, matter was to be considered according to the old B. was right, and that the judgment of non pros. was practice, under which a rule to declare peremptorily irregular, having been signed too soon. The old must have been obtained in term, and therefore this. rule was, that a plt. had the whole of the term next notice must be given in term, and consequently that after the execution of the writ, within which to plt. had another term wherein to declare. declare; and no notice having been taken of that The 53rd section of the C. L. P. A. 1852, under in the new rules of Hilary 1853, and it being a mere which the four days' notice was given, is as follows:rule of practice not reduced to writing, the court "Rules to declare or declare peremptorily, and rules thought it was a convenient rule, and one which to reply and plead subsequent pleadings shall not be ought to be acted on as it stands, and, consequently, necessary; and instead thereof a notice shall be subthe proceedings here having been stayed, the plt.stituted requiring the opposite party to declare, reply, had till the following term to declare: Held also, that the four days' notice substituted for rule to declare, &c. by the C. L. P. A. 1852, s. 53, may be given as well in vacation as in term. This was a rule calling upon plt. to show cause why an order of Channell, B., setting aside a judgment of non pros., should not be rescinded. The facts of the case, as set forth in the affidavits on which the rule was obtained, were as follows:-The action was brought on 24th Sept., on a bill of exchange, dated 1st Aug. 1861, drawn by deft. upon and accepted by Messrs. Milner and Tucker. A similar action was also brought at the same time against the said acceptors. The respective defts. obtained leave to appear and defend, and on 2nd Oct. appearances were entered accordingly. On 19th Oct. a summons having been taken out on behalf of all the defts., to show cause why the two actions should not be consolidated, Martin, B., made an order that "the action against the acceptors Milner and Tucker should proceed, and that the deft. in the other action (viz. the deft. Gilbert) should be

rejoin, or as the case may be, within four days, otherwise judgment, such notice to be delivered separately, or indorsed on any pleading to which the opposite party is required to reply, rejoin, or as the case may be."

G. Francis having in Easter Term obtained a rule to rescind the order of Channell, B., as above mentioned (see Medway v. Gilbert, ante, p. 218),

Prentice now showed cause.-The judgment was signed too soon. A plt. has the whole of the term next after issuing the writ in which to declare. Here the order of Martin, B., consolidating the actions, was a stay of proceedings, and the deft. could not force the plt. to declare till after a term had elapsed from the conclusion of the action against the acceptors.

G. Francis contra.-The order of Martin, B. was no stay of proceedings; it is not so expressed in the order itself. Plt. might have declared at any time, the order only affecting the deft. Even if it were a stay of proceedings, it would only operate up to the time of the action being concluded against the accep

Ex. CH.] HARRISON v. THE LONDON, BRIGHTON AND SOUTH Coast RAILWAY COMPANY. [Ex CL

tors, and the 53rd section of the C. L. P. A. 1852 renders it no longer necessary to wait a term after appearance before giving the four days' notice to declare; such notice may now be given at any time after appearance, and as well in vacation as in term time. Sect. 53 says it may be "indorsed on any pleadings," and pleadings may be delivered in vacation.

Deft.'s attorney, G. Badham, 37, Bridge-street, of duty, carelessness and negligence, and d Blackfriars.