the sum of 150l.: the plaintiffs offered them 201., which they refused, and commenced a suit in the Court of Admiralty. The plaintiffs paid the 201. into Court, that sum being considered by their agent, who was a person conversant with such matters, to be a sufficient compensation: the suit proceeded, and in the result the salvors obtained a judgment for 451. and costs. It was not shown that the present defendants had any notice of these proceedings; and it was insisted on their behalf, first, that the employment of the steam-tug was not necessary; but secondly, that even if it were, the plaintiffs were not entitled to recover against the defendants the costs in the Admiralty Court, which ought never to have been incurred. The learned Judge left it to the jury to say whether the assistance of the steam-tug was necessary, and they *found that it was and a verdict was taken for the plaintiffs for an amount including the 451. paid for salvage under the decree of the Court of Admiralty, leave being reserved to the plaintiffs to increase the damages by 1241., the amount of the costs, if the Court should be of opinion that the plaintiffs were entitled to recover them also. In Michaelmas Term, Bompas, Serjt., obtained a rule accordingly; against which Erle and Barstow now showed cause: The defendants, having had no notice of the proceedings in the Admiralty Court, so as to enable them to come in and undertake the defence of the suit, cannot be held liable for the costs of that litigation. This is not the case of a contract of indemnity, in which case only a claim can be sustained for the costs of proceedings unnecessarily defended by the plaintiffs: Penley v. Watts (1). Here it was at the plaintiffs' risk that they stood out for a less sum than that demanded by the salvors. In Short v. Kalloway (2), Lord DENMAN, Ch. J., says, "No person has a right to inflame his own account against another, by incurring additional expense in the unrighteous resistance of an action which he cannot defend." Walker v. Hatton (3) was a much stronger case than this: there the conduct of the defendant had been most vexatious, yet the costs incurred in defending an action in which the plaintiff had failed, were held out to be recoverable, the contract of the defendant not amounting to a contract of indemnity. This is not a case of contract. at all, but of tort; the defendants are liable only for the necessary (1) 56 R. R. 810 (7 M. & W. 601). (2) 11 Ad. & El. 28. (3) 62 R. R. 600 (10 M. & W. 249). or natural consequences of the collision; and how could these costs be such ? (PARKE, B.: The parties are in the same situation as if the defendants had entered into a contract with the plaintiffs not to do the wrong complained of. That is not a contract of indemnity.) *Certainly not. It must be taken that 451. was fairly due to the salvors, and the plaintiffs had no right to contest it and offer a smaller sum; they ought to have tendered a proper amount, or at least to have paid it into Court, and had no right to run the risk and make the experiment of cutting down the claim of the salvors at the defendants' expense. Butt, contrà: If the defendants had entered into a contract not to run down the plaintiffs' vessel, they would have been liable to these costs, as being the necessary consequence of the act complained of. This case is distinguishable from the cases of contract which have been referred to. Where the defendant binds himself to do a thing in consideration of the plaintiff's contracting to do another thing, the latter has no right to refuse to perform his contract, and so to throw upon the defendant any part of the costs arising from his own. default. But here there is no contract as to the salvage; and these are costs necessarily incident to the suit for salvage. (PARKE, B.: The difficulty is, that the plaintiffs might have saved themselves from all these costs, by tendering a reasonable sum.) According to the practice of the Court of Admiralty, no tender out of Court is available. (PARKE, B.: But surely such a tender, if made, affects the costs of the suit. ALDERSON, B.: It is stated in Abbott on Shipping, 511 (6th edit.), that "Where a well-founded claim of salvage has been entered in the Court of Admiralty, the proper course to be pursued by the defendant, in order to save the expense of further proceedings, is to tender in the first stage of the cause, by acts of Court, and not personally and verbally, to the claimant, a specific sum for the salvage, accompanied by an offer to pay the costs. The Court will then consider the sufficiency of the sum tendered, and if it shall be * thought sufficient, will make the party who refuses the offer liable, not only for his own costs, but also the costs of the other side, if it shall appear that the proceedings have been vexatiously pursued.") According to that authority, a tender can only be made after a suit has been commenced, and before suit it would have no more effect than a tender of unliquidated damages, before action, in a court of law. By no effort, therefore, could the plaintiffs have saved these costs, without paying an exorbitant demand, which the Court of Admiralty have held not to be sustainable. The plaintiffs exercised the best discretion they could, and cannot be required to do more than pursue the course which a prudent man, acting on his own account, would have adopted. The result shows that they ought not to have paid the 150l. without suit; and a tender of the 45l., which by the judgment of the Court is the proper sum, would not have prevented the suit's proceeding. (PARKE, B.: I am not prepared to say that the principle you have laid down is incorrect, that the necessary consequences of the wrong are what a prudent man would reasonably do to repair the mischief (1). It is perhaps like the cases in insurance law, where the question is whether a prudent man would repair or sell the ship. But you should have asked the learned Judge to leave it to the jury whether the plaintiffs had done what a reasonable man could be required to do, in order to settle the suit: that point was not left to the jury, and if we are to suppose that the question is left to the Court as to a jury, there is the strong observation against you, that the Court of Admiralty, who could form the best judgment upon the matter, have said that 451. was the proper sum to be paid, by tendering which, therefore, you might have saved all these costs.) The event alone ought not to be looked at, to ascertain whether the course adopted was that of a prudent and reasonable man. The parties have to exercise their judgment at the time, and all that (1) This dictum was adopted and followed by the Court of Common Pleas in Mors-le-Blanch v. Wilson (1873) L. R. 8 C. P. 227, 233, 42 L. J. C. P. 70. The decision in the latter case was disapproved in Baxendale V. London, Chatham and Dover Railway Co. (1874) L. R. 10 Ex. 35, 42, 45, 44 L. J. TINDALL v. BELL, [ *231 ] TINDALL t. BELL. [232] can be required of them is a reasonable decision under all the circumstances. PARKE, B.: In truth the question in this case is one rather of fact than of law, and I think Mr. Butt has presented to us the true principle of determination; namely, that when the mischief is done, the necessary consequences of it are, what a reasonable man would do under similar circumstances, where he had no other judgment but his own to resort to; and it may be one of them that he should incur litigation. This question was not left to the jury; the plaintiffs did not require that it should be so left. If it had, the jury would probably have found that as the Court of Admiralty, which had the means of forming the best judgment upon the circumstances, thought 451. the proper sum to be paid to the salvors, the tender of a less sum was not the course that a reasonable man ought to have pursued. And taking the question to be reserved by consent for the consideration of the Court, I cannot say I am satisfied that the plaintiffs did conduct themselves as prudent men reasonably ought to do, in tendering so small a sum as 201. It is true this is judging by the event, but we have nothing else to judge by upon the evidence. The case very much resembles the cases of repairs, in which it is admitted that if the party chooses to stand the consequences of an action by the tradesman for the value of the repairs, he cannot charge the expense of that as a consequence upon the party who did the original wrong, whereby the repairs became necessary. ALDERSON, B., GURNEY, B., and ROLFE, B., concurred. Rule discharged. 1843. Feb. 25. Exch. of BEEMAN v. DUCK (1). (11 Meeson & Welsby, 251–256; S. C. 12 L. J. Ex. 198.) A bill of exchange, purporting to be drawn by B. and W. (a really existing firm) payable to their order, and to be indorsed by them, was negotiated by the acceptor with that indorsement upon it. The drawing and indorsement were forgeries: Held, that if the bill was accepted, and negotiated by the acceptor, with knowledge of the forgery, he was estopped to deny the (1) Cited Garland v. Jacomb (1873) L. R. 8 Ex. 216, 219; L. & S. W. Bank v. Wentworth (1880) 5 Ex. D. 96. 103; 44 L. J. Ex. 657; Vagliano v. Bank of England (1888) 22 Q. B. D. 103, 114, 58 L. J. Q. B. 27 (1889) 23 Q. B. Div. 243, 260; 58 L. J. Q. B. 357; and see Bills of Exchange Act, 1882 (43 & 4ỏ Vict. c. 61), s. 54 (2).—A. C indorsement, as well as the drawing, by B. and W.: but semble, that where the name of a real party, as the drawer, is forged, a party who accepts the bill in ignorance of the forgery, is estopped to deny the drawing only, but not the indorsement, although in the same handwriting. ASSUMPSIT on a bill of exchange for 175l., stated in the declaration to have been drawn by certain persons, under the name, style, and firm of Bradshaw and Williams, upon the defendant, under the name or style of W. Serjeant, payable to the order of Bradshaw and Williams, at three months' date, accepted by the defendant, and indorsed by Bradshaw and Williams to the plaintiff. To this count the defendant pleaded, first, that the said persons therein mentioned did not draw the said bill as alleged; secondly, *that the said persons did not indorse it; and thirdly, that the defendant did not accept it: upon which issues were joined. At the trial before Wightman, J., at the last Bristol Assizes, it appeared that W. Serjeant, who was a partner of the defendant, brought the bill to one Johnson, a prior holder to the plaintiff, with the names of Bradshaw and Williams indorsed upon it, and negotiated it with him. The defendant alleged that the bill was accepted by Serjeant on account of a private transaction with him, and malâ fide. It was proved that Messrs. Bradshaw and Williams was a really existing firm, with which Serjeant had been accustomed to deal; and those persons being called, they swore that neither the drawing nor the indorsement of the bill was theirs; but stated also, that the handwriting of both was evidently the same. The learned Judge summed up the case to the jury with reference to the question which had been treated in the course of the trial as the principal point in dispute between the parties, viz. whether there was collusion or knowledge on the part of the plaintiff that the bill was made otherwise than for partnership purposes: and it was not until after the jury had given their verdict for the plaintiff, that his attention was called to the issue denying the indorsement, which it was alleged, on behalf of the defendant, was proved by the evidence of Bradshaw and Williams. In Michaelmas Term, Bompas, Serjt., obtained a rule nisi for a new trial, on the above ground, against which Erle and Montague Smith showed cause (Feb. 8): The defendant, as acceptor of this bill, was clearly estopped from denying that Bradshaw and Williams drew it: and it being proved that the handwriting of the indorsement and of the drawing was |