he is responsible for the architect's acts. I cannot, however, *797] *discover any evidence that the defendant employed the architect to tell the builders that the quantities of materials required to complete the structure would be so much and no more. Indeed, there was evidence from the mouth of one of the plaintiffs' own witnesses, that a careful builder always calculates the quantities for himself before he makes a tender.

BYLES, J., concurred.

KEATING, J.-I also think the nonsuit right, upon the ground stated by my Lord. The case mainly relied on by Mr. Denman, that of Moon v. The Guardians of the Witney Union, is quite distinguishable from the present. That was an action by the surveyor who had taken out the quantities, against the guardians who had employed the archi tect, amongst other things, to cause that work to be done. The advertisement for tenders referred builders desirous of tendering to the office of the clerk to the guardians for the purpose of seeing the plans and specification; and the instructions given to the defendants' clerk to show to builders applying contained an intimation that the quantities were being taken out, and that the expense of taking them out was to be defrayed by the successful competitor. And, when the architect sent in his bill to the guardians containing the surveyor's charge for taking out the quantities, no objection was made to that item, but they paid him a sum, which he received in satisfaction of his charge, nothing being said about the surveyor's charge. That was much relied on: and the Court held that there was evidence to go to the jury in support of the plaintiff's claim. That clearly is no authority for the contention here, that the customer is responsible for *798] a representation made by the architect *to the builder as to a matter of which the employer must necessarily be entirely ignorant. Rule refused.

(a) See Addison on Contracts, 4th edit. 633, where the law seems to be laid down with remarkable precision,-" It is not every affirmation and representation which will be binding upon the principal. If the fact concerning which the representation is made lies as much within the knowledge of the one party as the other, or even if its correctness or incorrectness may be ascertained by the party interested in knowing the truth, by the exercise of ordinary inquiry and diligence, and the agent making the statement merely says what he believes to be true, and expresses his opinion in an ordinary conversation about the matter, leaving the party dealing with him to test the accuracy of his statement by more extended inquiries (be having the means of so doing within his reach), there is no warranty on the part of the agent of the truth of what he states: it is understood only, under such circumstances, that he does not wilfully state that which he knows to be false, either to mislead or to lull to sleep the vigilance of the other contracting party."

PIGRIM v. SIR NORTON KNATCHBULL, Bart. April 25. A writ of summons issued against the defendant on the 5th of January, 1865. The defendant had two residences, one in London, the other in Kent, more than twenty miles distant from the plaintiff's residence, which was in London. On the 4th of January, the plaintiff's attorney received a letter from the defendant, dated from his residence in Kent, referring him to his attorneys in London to accept service of process for him. The defendant's attorneys on the day of the issuing of the writ gave an undertaking to appear: and on that day one of them had an interview with the defendant at his London residence :—

Held, on the authority of Butler v. Ablewhite, 6 C. B. N. S. 740,-that the result of the facts thus appearing was, that the defendant was residing in Kent at the time of the commencement of the action, and consequently that there was concurrent jurisdiction, and the plaintiff was entitled to his costs, under the 15 & 16 Vict. c. 54, s. 4.

THIS was an action brought by the plaintiff to recover from the defendant the sum of 157. 3s. 3d., alleged to be due to him for wages as butler. The defendant *had paid 57. into Court; and at the [*799 trial before the sheriff of Middlesex, a verdict was found for the plaintiff for 10l. 3s. 3d. beyond the sum so paid in. An application was made to the undersheriff at the trial for a certificate that the cause was proper to be tried in the Superior Court, but was refused.

Upon an affidavit of the plaintiff stating that, "at the time of the commencement of the action, the plaintiff dwelt at No. 11, Wilton Terrace, Wilton Road, Pimlico, in the county of Middlesex, and the defendant at the time of the commencement of the action dwelt at Mersham Hatch, near Ashford, Kent, and that their respective dwellings were then and still are more than twenty miles apart from each other, and also an affidavit of his attorney stating, that, on the 4th of January, he received a letter from the defendant, dated Mersham Hatch, January 3d, 1865, stating that he would instruct his attorneys in London to accept service of process for him, and that the writ of summons issued on the 5th, and an undertaking was on that day given to appear."

B. T. Williams moved for an order under the 15 & 16 Vict. c. 54, s. 4, that the plaintiff should have his costs of the action. The affidavits in opposition to the rule state that the defendant dwells at No. 3, Chesham Place, Belgrave Square, London (which is less than twenty miles from the plaintiff's residence), as well as at Mersham Hatch, Ashford, Kent; that he keeps an establishment at No. 3, Chesham Place, and is frequently there during the year, and for long periods at a time; that the plaintiff's hiring as a butler was made by Lady Knatchbull at No. 3, Chesham Place; that the writ in this action was issued on the 5th of January, 1865; and that the defendant was then at his residence No. 3, Chesham Place. Where *the [*800 plaintiff has two permanent places of residence at the time of the commencement of the action, either of which is distant more than twenty miles from the defendant's dwelling, it is a case of concurrent jurisdiction within the 128th section of the County Court Act, 9 & 10 Vict. c. 95, and he is entitled to costs under the 15 & 16 Vict. c. 54, s. 4. This Court so decided, after time taken to consider, in Butler v. Ablewhite, 6 C. B. N. S. 740 (E. C. L. R. vol. 95), and the Court of Queen's Bench adopted that decision in Kerr v. Haines, 29 Law J., Q. B. 70. [BYLES, J.-In the latter case, the Court held that the plaintiff dwelt at Margate, and not in London.] In giving judg ment in Butler v. Ablewhite, Cockburn, C. J., refers to an earlier case of Macdougall v. Paterson, 11 C. B. 755, where the question was brought under the consideration of this Court. "It became, indeed," says his Lordship, "unnecessary to decide it; but the inclination of the opinion of the Court would appear to have been in favour of the concurrent jurisdiction. Jervis, C. J., in delivering the judgment of the Court, says, 'The defendant contended, that, at the time of the

action brought, the plaintiff dwelt in two places,-in Scotland, and in Golden Square; and, perhaps, even if this had been the case, this Court would have had concurrent jurisdiction, because it could not in that case have been suggested on the roll that the plaintiff did not dwell more than twenty miles from the defendant.' And in the course of the argument, Mr. Justice Maule made this observation. Assuming that a man may have a dwelling-house in two places at the same time, he may, as I read the Act, have the rights which belong to a man who dwells more than twenty miles off, and also those which belong to a man who dwells less than twenty miles off. There are no negative words in the Act.' The impression of that learned Judge, therefore, seems to have been, that, if the plaintiff has two perma*801] nent residences, one more and one less than twenty miles off, whether he be actually occupying the one or the other at the time of action brought, there is concurrent jurisdiction."

Marshall Griffiths showed cause.-Bailey v. Bryant, 1 Ellis & Ellis 340, is directly in favour of the defendant, and is not to be distinguished from Butler v. Ablewhite. There, an action having been brought in the Queen's Bench, by two joint plaintiffs, upon a cause arising within the jurisdiction of the London (City) Small Debts Extension Act, 15 & 16 Vict. c. lxxvii., (a) on contract, and a verdict of less than 50%. having been found, the defendant applied to deprive the plaintiffs of costs, on affidavit that the defendant carried on business in the city of London at the times of the cause of action arising and of the commencement of the action; that the plaintiffs carried on business at Southwark, within twenty miles of the residence and place of business of the defendant, and did not, as the deponent believed, at the time of action brought, dwell more than twenty miles from the defendant. No place of residence or business was more particularly described. It was held that this affidavit was sufficiently precise to call for an answer. *802] In answer it *was deposed that one of the plaintiffs had three residences, two more than twenty miles distant from the defendant's place of business, and that the deponent did not know of the defendant's residence unless it was such place of business; that the same plaintiff had also a dwelling-house in Westminster, within such twenty miles, which he occupied for three or four months only in the year, for the purpose of attending in Parliament, of which he was a member; and that he was resident in one of the two residences first mentioned at the time when the action was brought. It was held that this did not answer the defendant's affidavit, within the meaning of s. 118. "It is clear," said Lord Campbell, C. J.," that the plaintiff Bailey has a permanent residence at Westminster his house there is not a mere lodging: it belongs to him all the year round, though he does not use it so much as his other residences." In Kerr v. Haines, an attempt was made to distinguish that case from Butler v. Ablewhite: but Cockburn, C. J.,

(a) By the 118th section of which it is enacted that all actions which before the Act might have been brought in the superior Courts, where the plaintiff dwells more than twenty miles from the defendant, may be brought in the superior Court, at the election of the party suing (with some exceptions). And by s. 119, that, in other cases for which a plaint might have been entered under the Act, the plaintiff is to have no costs if the verdict be not for more than 50%., if the action be founded on contract, unless the Judge certify that the action was fit to be brought in the superior Court.

said it was impossible to distinguish them. [MONTAGUE SMITH, J.— To which of those two cases did the Court adhere in Kerr v. Haines?] It was not necessary to decide; for, they held that the residence was in Margate only. There is this distinction between Butler v. Ablewhite and the present case,-There, at the time the action commenced, the plaintiff was actually residing in Warwickshire; whereas here the defendant was residing at that time at No. 3, Chesham Place. Besides, all the cases were cases where the party who had the two residences was the plaintiff: here it is the defendant. [ERLE, C. J.What difference can that make? BYLES, J.-In either case,-or if both plaintiff and defendant have two dwellings-the plaintiff does in one sense dwell more than twenty miles from the defendant.(a)] The words of the Act are *enabling and not negative words: and it [*803 would manifestly be contrary to the policy of the Act to allow a plaintiff to resort to the superior Court in a case like this. In Macdougall v. Paterson, the decision was that the party had not two residences. Can it be said here that the plaintiff does not, within the words of the 128th section, dwell within twenty miles of the defendant? So to hold will be to deprive the defendant of a right which the statute has given him, because he happens to possess a countryhouse.

Williams, in support of the rule.-Butler v. Ablewhite is conclusive. The only distinction suggested between that case and the present, is, that there it was the plaintiff who had two residences, and the defendant here. [BYLES, J.-The Court there lay some stress upon the fact that the plaintiff was actually residing with his family at his residence in Warwickshire at the time of the commencement of the action.] The affidavits in opposition to the motion do not show that the defendant was dwelling at his London residence on the 5th of January, when the writ issued, but merely that he was seen there on that day. On the 3d, he wrote from his residence in Kent referring to his solicitors for an undertaking to appear. [ERLE, C. J.— The jurisdiction of the County Court rests upon the dwelling of the defendant: 9 & 10 Vict. c. 95, s. 60. If the plaintiff has a [*804 dwelling more than twenty miles from the dwelling of the defendant, the authorities hold that the plaintiff may set up his more distant dwelling to sustain his right to sue in the superior Court. The place of the defendant's dwelling must all along be assumed to be the matter to which the legislation relates. I am unable to make out a satisfactory distinction between the plaintiff's dwelling and that of the defendant.]

ERLE, C. J.-I am always desirous of adhering to any rule I find laid down and I agree with that laid down by this Court in Butler v. Ablewhite, 6 C. B. N. S. 740 (E. C. L. R. vol. 95). There, the plaintiff had two residences, one of which was within twenty miles of the defendant's residence, the other beyond that distance: and the Court (a) Gorslett v. Harris, 29 Law Times 75, was the case of a defendant. There, upon an application to deprive the plaintiff of costs, it appeared that the defendant was a builder who had been employed to fit up certain houses in the County Court district where a material part of the cause of action arose, and that, for the purpose of performing that contract, he had set up workshops and counting-houses there: and Lord Campbell said: "All this is only for the purpose of performing this particular contract, and is only to last whilst the job continues. That being so, he does not carry on his business there, within the meaning of the County Court Act."

put their judgment upon the ground that the plaintiff's actual residence at the time the action was commenced was at the more distant place. I feel no hesitation in adhering to that case as it stands. The point there decided, however, is not precisely the point which is raised here; for, here the question arises in respect of the defendant having two residences. I am unable to find that this circumstance creates any real distinction between the two cases. I give my judgment according to the decision in Butler v. Ablewhite, because the fair result of the affidavits on both sides seems to me to be, that, although he was on that day seen at his London house, the actual place of residence of the defendant at the time the writ of summons was issued was Mersham Hatch, in the county of Kent, which is more than twenty miles distant from the plaintiff's residence, and therefore the plaintiff had a right to resort to the superior Court for the recovery of his demand. I therefore think the rule should be made absolute for the allowance of the plaintiff's *costs. As, however, cause *805] is shown in the first instance, the costs of the rule are in our discretion and I think, under the circumstances, the plaintiff should not have those costs.

BYLES, J.-I am of the same opionion. The case of Butler v. Ablewhite underwent much consideration. The decision there proceeded, and in my judgment correctly, upon a literal construction of the statute 9 & 10 Vict. c. 95, s. 128. By the Statute of Gloucester, 6 Ed. 1, c. 1, a plaintiff who obtains a verdict is entitled to costs, unless he is deprived of them by some subsequent legislative enactment. The plaintiff contends that the statute 9 & 10 Vict. c. 95, does not deprive him of his right to costs, because he brings himself within the concurrent jurisdiction clause, his residence being distant more than twenty miles from the residence of the defendant at the time of the commencement of the action. If that fact had been suggested upon the roll here, and issue taken upon it, it must have been found for the plaintiff. It seems to me that there is no real distinction in this respect between a plaintiff having two residences, one within and the other beyond the prescribed distance from the defendant's residence, and a defendant having two residences similarly circumstanced as to distance from the plaintiff's place of abode. I therefore think our decision is governed by the authority of one, if not by that of two cases in this Court,-Macdougall v. Paterson, 11 C. B. 755 (E. C. L. R. vol. 73), and Butler v. Ablewhite, 6 C. B. N. S. 740 (E. C. L. R. vol. 95). MONTAGUE SMITH, J.-I am entirely of the same opinion. Rule absolute, without costs.