The opinion of the Court was drawn up by
Davis, J.,
There is no allegation in the writ that the locomotive causing the fire was in the use of the Atlantic and St. Lawrence Railroad Company, or the Grand Trunk Railway Company, their lessees. The demurrer must be sustained. • The plaintiff, at Nisi Prius, may have leave to amend upon payment of costs up to the time when his amendment was offered, and in no event to recover costs accruing before that time. Tenney, C. j., and Appleton, Cutting, Goódenow and Kent, JJ., concurred.