from the occupation and employment of the smack for the same period. In answer to the act setting out the above claims, the owners of The Columbus alleged, that the smack was weighed at their expense on the 2nd July, 1847, and taken into the port of Rye: that, prior to weighing the smack, they had proposed to Woodward's agent to weigh her, which proposal he declined; and that, having weighed her themselves, they gave him notice that she was in Rye harbour, and ready to be delivered to him; and that a similar notice was subsequently given to the proctors of J. Woodward, but no answer was given to either: that, prior to the weighing of the smack, part of her stores, apparel, and furniture had been saved by the officers and men of the coastguard service, as well as by Woodward himself and his brother and the crew of another smack; which stores, apparel, and furniture were still in the custody and possession of the coast-guard, or of the two Woodwards, and that the smack herself, and such stores, &c., were still the property of J. Woodward, who, notwithstanding, claimed as for a total loss: that the Registrar and merchants, by their report, allowed the sum of 310l. 10s., as for a total loss, and without regard to the hull of the smack or the stores, &c.: that the smack might have been repaired, and put into a fit and serviceable condition in all respects, within a month after the collision, at a moderate expense; and that they were not liable, under the decree of the Court, for any other charges or expenses in respect of the damage than the charges and expenses which would have been incurred in repairing her and obtaining possession of her stores, &c.: and that all further loss and expenses were incurred by J. Woodward's not taking possession of and repairing the smack, as he ought to have done. It was further alleged on behalf of the owners of The Columbus, that the sum of 3107. 10s. allowed in the report, with interest at the rate of 51. per cent., was more than ample compensation for the actual loss, and that the disallowance of the sums claimed, 891. for loss of wages and 757. for loss of profits, was in accordance with the usage of merchants and of this Court in like cases. The reply denied the usage of merchants and the Court, and alleged that J. Woodward had a right to renounce and disclaim all title to the smack and stores, and that the sum of 310/. 10s., with interest, was not a compensation equivalent for the loss sustained.

Addams, for J. Woodward, in objection to the report. Sir J. Dodson, Q. A., and Harding, contra. [The only case cited was The Gazelle, (2 W. Rob. 279).1

Dr. LUSHINGTON.-The Court, with the assistance of the Trinity Masters, pronounced in favour of the claim preferred on behalf of the plaintiff in this case, and the amount was referred to the Registrar and merchants for their report. They have found as for a total loss, and have given the party proceeding what they consider to be the full value of the smack which had been run down, namely, 310/. 10s. An objection has been taken to their report by Mr. Woodward, the owner of the smack, on the ground that they have disallowed a claim of 891. for his wages, and 757. for the average profits of the smack, during the period the cause was proceeding. But they have allowed 5l. per cent. from the day the smack was run down. On the part of Mr. Fletcher, the wner of The Columbus, it is said that the mode of calculating the 3107. 10s. is erroneous, inasmuch as the smack was weighed, taken into Rye, and might there have been repaired at much less than the sum allowed by the report. Mr. Fletcher, however, would not have disputed the report, unless it had been objected to in the first instance by Mr. Woodward. The Registrar and merchants have proceeded upon the same principle as if the smack had been a total loss. It has been argued on behalf of Mr. Woodward, that the principle on which the Court proceeds is that of restitutio in in

tegrum-placing the party in the same position in which he would have been had the collision never occurred. Indemnity certainly is the principle; but in estimating that, all courts must be guided by certain rules, and it is almost impossible to give the precise amount. Sometimes the sum awarded exceeds, sometimes falls short of, the actual loss. I never rècollect a case in which a vessel has been totally lost where any claim has been made beyond her value. I have looked myself to find a precedent, but I have found none, nor have the counsel in the case. But, where there has been a partial loss, the Court, thinking the true grounds to be, that the party damaged should be put in the status quo, has, in some instances, given that which amounts to an indemnity. But the same reasoning does not apply in cases of total loss. What would be the consequence, then, of giving anything beyond the value? If an East Indiaman were lost, a claim might be made for the seamen's wages during the voyage, and even for the homeward freight. There would be all sorts of ramifications. In cases of total loss, then, the value at the time is to be taken as the full indemnity to all. If this is once exceeded, I see no limit; and I am of opinion, that, on this ground alone, I cannot maintain this claim. In the case of partial loss, the Court has, in peculiar circumstances, allowed compensation as for loss of freight occasioned by detention; and this. was done in The Gazelle, (2 W. Rob. 283). I think, that, in this case, the Registrar and merchants have exercised a very sound discretion. They have given the value of the property, with interest from the very date of the loss itself; thus putting Mr. Woodward in the same situation as if he had received the money at the time. I have no desire, therefore, to disturb the report on that ground. With regard to the other branch of the case, I mean the objections taken by the owners of The Columbus, I admit the case to be one of great difficulty, in which it is impossible to lay down any general principles; and I am reluctant to make remarks that might lead to litigation in future cases, but I entertain no doubt whatever as to the true principle on which we ought to act. I have no intention of importing into this court the principles that apply to insurance cases with regard to abandonment. The rule on which I must proceed is this: if a vessel is sunk at sea, it is not incumbent on her owners to go to any expense whatever for the purpose of raising her, thus incurring the risk of failure in bringing her to a place of safety. But I apply this only where a vessel is sunk, not where there is a chance of bringing her safe into port; for where a vessel is only partially damaged, and there is the slightest chance of bringing her into port, provided the expense does not exceed the value of the ship, the effort must be made. Mr. Woodward, therefore, was not bound in this case to weigh the smack. Mr. Fletcher, however, undertook this expense, and succeeded, and then made an offer to Mr. Woodward to take the smack in the state she was then in. The Court is not without doubt as to the course which either or both ought to have pursued. On the one hand, Mr. Fletcher had no absolute property in her; on the other, she was not rescued from the peril of the sea by her owner, and he might have left her at his own risk; and if she had been utterly destroyed, and he had failed in the suit, he must have taken the consequences. Each party should have called on the Court to decree her sale, and the proceeds might have been brought in to abide the result of the action, and Fletcher might have been entitled to have the proceeds paid over to him; whilst the sale under the authority of the Court would have given an indefeasible title to the purchaser. On the whole, I think the Registrar and merchants have come to a just and equitable conclusion, and the report is not to be referred back.

Carbery, as such attorney, claimed to set off the amount of this bill against the bill for 10707. 13s. 4d., of which payment had been demanded by the respondents. This claim was resisted by the respondents; and on the 29th March, 1842, they commenced their action on the two bills for 10701. 13s. 4d. and 450l. The action was brought against both Allen and Carbery, who were joined as defendants. They put in separate defences, by which (among other things) they insisted that the bills sued upon should be considered as settled to the extent of the amount due on the bill for 12241. 4s. The Court, however, disallowed that claim, and pronounced the following sentence:"The Court, having heard the parties, and having read and examined the documents and vouchers filed and produced in this matter, condemns the defendants, with rejection of their conclusion of exceptions and answer, singuli in solidum, the one paying the other to be exonerated, to be reimbursed to the plaintiffs; and, as regards the first-named defendant, (Allen), on receiving cession of action, if need be, against the second-named defendant, the protested bills of exchange filed herein, of 450l. sterling and 10707. 13s. 4d. sterling, with damages, for re-exchange, of twenty-five per cent., and interest from day of citation until fully paid, with costs." The effect of this is, that if Allen, the indorser, pays the bill, he is to have a cession of action against Carbery, the drawer. Of course, whichever pays the bill will have a right of recourse against Mackie, the acceptor. Mackie, as against the holders, the respondents, has a clear right of set-off by the law of England; and the question is, whether, by the course of proceeding adopted by the respondents of suing in Demerary the other parties to the bill, who will afterwards have a right to sue Mackie, their right can be defeated. It must be admitted that this would not be very consistent with justice; but we are to look only to the rules of law, as they may be applicable to the issue joined between the parties upon this record. The appellants contend that their liabilities are to be governed by the Roman-Dutch law which prevails in Demerary, where the bill was clearly made and signed by Carbery. It does not appear in evidence when the indorsement by Allen was made; but as Carbery's defence, that the bills are actually paid pro tanto, must, if it prevails, protect Allen, the indorser, also, this is not material. The appellants then contend, that the principle of compensation in the civil law is adopted by the Roman-Dutch law, and applied to bills of exchange: that, by the effect of this principle, a debt due by a debtor to a creditor is compensated, or, in other words, extinguished, by a liquid debt of the same amount due from the creditor to the debtor: that the law operates an extinguishment of the one debt by the other: that a surety is entitled to avail himself of this rule of law in respect of a debt due to the principal debtor: and that the drawer and indorser of a bill of exchange are deemed sureties for the acceptor, and are entitled to the benefit of this rule. To support this doctrine, various authorities were cited from Pothier, Vanderlinden, Heineccius, and other Treatises, which appear to us satisfactorily to establish the proposition contended for. These propositions, indeed, were not much disputed by the respondents, nor was it denied, that, when a bill is drawn generally, the liabilities of the drawer, acceptor, and indorsers respectively must be governed by the laws of the countries in which the drawing, acceptance, and indorsements respectively took place; but it was contended, that, when payment is to be made in a place different from that where the contract is made, the parties cannot be held to have contracted with reference to the law of the place of payment, and not of the place of contract, according to the maxim of the civil law, "Contraxisse unus quisque in eo loco intelligitur in quo ut solveret, se obligavit." And it is argued, that this bill being drawn payable

in London, not only the acceptor, but the drawer, must be held to have contracted with reference to the English law. This argument, however, appears to us to be founded on a misapprehension of the obligation which the drawer and indorser of a bill incurs. The drawer, by his contract, undertakes that the drawee shall accept and afterwards pay the bill, according to its tenor, at the place and domicile of the drawee. If this contract of the drawer be broken by either nonacceptance or non-payment, the drawer is liable for payment of the bill, not where the bill was to be paid by the drawee, but where he, the drawer, made his contract, with interest, damages, and costs, as the law of the country where he contracted may allow. In every case of a bill drawn in one country upon a drawee in another, the intention and agreement are, that the bill shall be paid in the country upon which it is drawn. It is admitted, that, if this payment be not so made, the drawer is liable according to the laws of the country where the bill was drawn, and not of the country upon which the bill was drawn. What, then, is the consequence of altering in the bill itself, and by the acceptance, the place at which the acceptor is bound to pay? Can it be more than this, that as to the acceptor the locus solutionis is altered; and, therefore, as to him, the lex loci solutionis is altered? But how does this affect the liabilities of the other parties? These bills are addressed to Mr. Mackie, Stranraer, Scotland. If no place of payment had been mentioned, they would have been payable by the drawee according to the law of Scotland. London being fixed as the place of payment, they are payable by the drawee according to the law of England: a different law is imported as regardsthe acceptor, but not as affects other parties. There is nothing to support the distinction contended for by the respondents in two of the three cases referred to by them. In Robinson v. Bland (1 W. Black, 234, 256; 2 Burr. 1077) and in Cooper v. Lord Waldegrave, (2 Beav. 284), the case arose on the liability of the acceptors; and, in the latter of these cases, Lord Langdale, after remarking how little is to be found in English decisions upon subjects of this kind, observes, that, as to the drawer and indorser of the bill, the law of the place where the bill was drawn and indorsed, and not where it was made payable, might govern their liabilities. The case, however, mainly relied upon by the respondents was Rothschild v. Currie, (1 Adol. & Ell., N.R., 43). In that case, a bill was drawn in England on a party resident in Paris, and made payable in Paris in favour of a payee resident in England. It was indorsed over in England by the payee to a party also resident in England. The bill having been dishonoured by the acceptor in Paris, it was held, that protest and notice of dishonour regular, according to the law of France, though alleged to be insufficient according to the law of England, were sufficient to charge the indorser. It may be observed, that, since the cases above referred to were decided, the whole law upon this subject has been most carefully, elaborately, and learnedly examined by Mr. Justice Story in his Treatise on Bills of Exchange, and he disapproves of the decision in the case of Rothschild v. Currie, (Story on Bills, note to § 177). But, without expressing any opinion upon that decision, it is enough for us to observe that the Court did not profess to depart from any principles of law acted upon in previous cases; and whether those principles were or were not accurately applied to the particular case is not for the present purpose material. We are of opinion, upon the whole, that this case must be decided according to the law of Demerary, and that the amount due upon the bill for 10707. 13s. 4d., which first became due, must be considered as compensated and extinguished from the time it became due by the amount of the bill for 12247. 4s. and interest, and that the remainder of that bill must be applied, as far as it

will extend, towards payment of the bill for 450l.; and that sentence ought to have been pronounced in the court below only for so much of the bill for 450l. as will remain unpaid after such application with interest, according to the law of Demerary, but with no other expenses, and no costs of suit.-Decree of the Court below reversed.

[Before LORDS LANGDALE and BROUGHAM, THE CHANCELLOR OF THE DUCHY OF CORNWALL, and THE JUDGE OF THE ADMIRALTY COURT.]

[Appeal from the Prerogative Court of Canterbury.] SMEE v. BRYER*.-July 8 and 17.

Wills Act, 1 Vict. c. 26-Signature-Foot or End. The Words, "at the Foot or End thereof," in the Wills Act, are to be construed strictly:-Held, therefore, where the Will terminated within an Inch of the Bottom of the third Page, but the Signature was on the fourth Page, that the Will was invalid, although the Testatrix, at the Time of Execution, explained to the Witnesses why she so signed.

This was an appeal from a sentence of the Judge of the Prerogative Court, rejecting the allegation offered on behalf of the appellant, the sole executor named in the will of Mary Bateman, spinster, deceased, propounding the said will. It appeared that the will was written in the handwriting of the testatrix, upon three sides of a sheet of foolscap paper, leaving no margin; the last line of the will was within about one inch of the bottom of the third page. The testatrix did not sign her name on that page, nor at the top of the fourth page, but half-way down that page, and opposite to the attestation clause. The testatrix explained to the witnesses the reason why she signed where she did, which was, that having been obliged to make an interlineation between the fifth and sixth lines of the first page of the will, and having left no margin, it was necessary that the witnesses should attest the interlineation opposite to it on the fourth page; and that, therefore, the attestation clause could not be written higher up, and that there was not sufficient room for the attestation clause at the bottom of the third page. The Judge of the Prerogative Court was of opinion that the will was not signed at the foot or end of the will, within the meaning of the 9th section of 1 Vict. c. 26.

[The case is reported 12 Jur. 103.]

The Attorney-General and Dr. Harding, in support of the appeal.—To pronounce against the validity of this will, it will be necessary to import something more into the act of 1 Vict. c. 26, than is there expressed, namely, that this will is signed, in common parlance, at the end. The act does not prevent there being a blank space in the body of the will; but the Court is asked to say, that, if there be a blank space after the dispositive part of the will, the will is to be invalid. The Court below, in fact, pronounced against the will under protest, an intimation from some quarter having reached the judge that the act was to be construed strictly. The judge had, in many previous cases, acted contrary. [They referred to the following cases:-In the Goods of Bullock, (3 Curt. 750); In the Goods of Carver, (Id. 29); In the Goods of Gore, (Id. 758); In the Goods of Davis, (Id.748); In the Goods of Powell, (1 Roberts. 421); Ayres v. Ayres, (Id. 466; S. C., 11 Jur. 417); In the Goods of Baker, (3 Notes of Cas. 162); Willis v. Lowe, (5 Notes of Cas. 428); In the Goods of Howell, (2 Curt. 342).]

close "at the foot or end." There is no doubt but

Dr. Robertson, (Sir F. Thesiger was absent), contra. -There was abundant room at the end of the third page to have signed the will; it was not necessary that there should have been an attestation clause * Reported by Mr. Edwards.

there. The plain meaning of the words of the act, "at the foot or end," is, as near as convenient after the last line of the will. (Hudson v. Parker, 1 Roberts. 14). The other side contend, that, because a very stringent construction has not been put upon the statute during the ten years since it has passed, the Court ought to follow the decisions; but we submit that this is no reason for perpetuating bad law. The Attorney-General, in reply.

Lord LANGDALE, M. R., stated that their Lordships were of opinion that the appeal must be dismissed, and the decision of the Court below affirmed; but that their Lordships would deliver their reasons at some future time.

Lord LANGDALE, on a subsequent day, delivered out the following reasons:-In this case, the will of the testatrix, Mary Bateman, is written on three sides of a sheet of foolscap paper. At the foot or end of the third and last side of the will there is space sufficient to have received the signature of the testatrix and also the signatures of two witnesses, if not accompanied by an attestation clause formally expressed. But neither the testatrix nor the witnesses signed the third side of the will immediately at the foot or end thereof: her signature is found about half-way down the fourth side of ately above it; and with the signature, about the middle the sheet of paper, no part of the will being immediof the fourth side, is an attestation clause, formally exabove the signature on the fourth side is occupied only pressed, and signed by two witnesses. The vacancy by two signatures of witnesses attesting an interlineation made between the fifth and sixth lines of that part of the will which is written on the first side of the same sheet of paper. The question is, whether this will is signed by the testatrix at the foot or end of the will, according to the true intent and meaning of the statute. Now, wills. It may happen, even frequently, that genuine forms are required for the purpose of preventing spurious wills, i. e. wills truly expressing the intentions of testators, are made without observation of the required forms; and, whenever that happens, the genuine intention is frustrated by the act of the Legislature, of which the general object is to give effect to the intention. The Courts must consider that the Legislature, having regard to all probable circumstances, has thought it best, and has, therefore, determined to run the risk of frustrating the intention sometimes, in preference to the risk of giving effect to, or facilitating the formation of, spurious wills, by the absence of forms. It is supposed, intention in some cases, by requiring forms, is less than and that authoritatively, that the evil of defeating the the evil probably to arise by giving validity to wills When questions made without any form in all cases. arise whether the prescribed forms have been observed or not-and such cases must frequently occur-it seems to be the duty of the Courts to construe the enactments according to the plain rules of common sense, not to strain the simple meaning of the words, or to be astute in giving special instructions on particular occasions for the purpose of evading the application of the rule, where its application may seem to us to frustrate or defeat the intention of testators in particular cases. We must act according to the rule, as expressed by the Legislature, founded on the principle, that it is more than to give effect to a particular will, at the risk of important to maintain the integrity of the general rule acting contrary to the intention of the Legislature, and depriving the public of that benefit which was intended to be produced by the generality of the rule. Applying these principles to the present case, it appears to us, and we shall so report to her Majesty, that the name of the end of the will as required by the act, and, therefore, testatrix, Mary Bateman, is not signed at the foot or that the will is not valid.-Dismiss the appeal: the costs to be paid out of the estate.