similar. But the salvor, not convinced, still contends on the authority of Five Steel Barges1 that chartered freight being an interest in the ship which has been saved, is chargeable with salvage services, and that in respect of this freight, an action in personam will lie against the owner of the vessel earning it. To this it would seem a sufficient answer to say, that a proceeding in personam is merely a form of action, and that where an action in rem-the ancient foundation of a salvage suit 2'-does not lie, a proceeding in personam will not be allowed 3. But this apart, the case cited-the circumstances of which were unusual-is free from ambiguity, and does not bear the construction sought to be put upon it by the salvor. The facts were as follow:

The defendants were under a contract to build and deliver certain barges to the government. The barges were being towed by the plaintiffs for the defendants from Chepstow to Portland, and were salved by the plaintiffs, who brought an action in personam against the defendants in respect of two barges which were given up to the government. It was argued for the plaintiffs that the defendants had an interest in the barges being delivered safely to the government, and that, therefore, a service was rendered to them personally. It was said in answer, that the plaintiff salvors had lost any rights they possessed against the barges by giving them up to the government without asserting their lien, and that the defendant builders had no property in them. But Sir James Hannen, finding that in case of non-delivery of the barges the builders, though not the legal owners, would have been liable to the government for their contract value, held that they had the interest of an owner in that value and awarded salvage accordingly. 'It appears to me, therefore, that they (the builders) had substantially an interest to the full amount of the barges at the time of the services, and that the same moral obligation to which the law has given force in case of an owner, applies to those who have an interest in the property' (at p. 147). This case was approved by the Court of Appeal in Cargo ex Port Victor1 where the facts, though far from being identical, were nevertheless of the same nature.

Government stores were shipped on a chartered vessel subject to the stipulations of a freight engagement under which the owners (the term including the charterers) were responsible for the safe delivery of the stores. In the course of her voyage the vessel having been in collision required salvage assistance in putting into a port of distress. The salvor brought an action in personam against the charterers in respect of services to the government stores, in

1 (1890) 15 P. D. 142. 2 Dr. Lushington in The Fusilier, Br. & L. 341 at p. 344. 3 The Chieftain, supra. [1901] P. 243.

the preservation of which they were interested. The Court held that the action would lie.

Lord Alverstone C. J. said (at p. 255): 'I think that in a common maritime adventure of this kind, at least, the persons who have the interest of owners in the goods by virtue of the contract they have made for the purpose of delivery, have an interest for the purpose of salvage.' But freight-chartered or otherwise-is not, as has been shown, a part of the value of a ship; and for this reason is not, in the sense of these judgments, an interest of the shipowner in that value.

The answer then to the salvor must be-chartered freight in course of being earned by a vessel in ballast is not a subject of Maritime Salvage.

H. BIRCH SHARPE.

213

REVIEWS AND NOTICES.

[Short notices do not necessarily exclude fuller review hereafter.]

A Concise Treatise on the Law of Wills. By H.S. THEOBALD. Seventh Edition. London: Stevens & Sons, Lim. 1908. La. 8vo. clvii and 991 pp. (35)

THE new edition of this useful book contains about fifty additional pages, representing the normal growth of the case law on Wills during the interval of three years which have passed since the last edition was issued. There is no substantial alteration in the arrangement of the book, but the cases as to the devolution of trust and powers on death have been collected in a short new chapter (xxxvi).

The preface states some weighty reasons for questioning the well-known case of In re Warren's Trusts (1884) 26 Ch. D. 208, in which it was held that the equitable doctrine of election was not applicable in aid of remote appointments, but as the decision has been followed in three recent cases (see p. 105) the author does not anticipate any immediate correction of the anomaly thus introduced into the doctrine of election. The late Lord Justice Kay would probably have favoured the author's views upon the point, see In re Brooksbank (1886) 34 Ch. D. 160.

In the sixth edition of this book the author treated the application of the rule against perpetuities to common law remainders (Frost v. Frost (1889) 43 Ch. D. 246), and to common law conditions (In re Hollis's Hospital [1899] 2 Ch. 540) as established law, but Frost v. Frost is ambiguous upon the former point, and In re Hollis's Hospital is now admitted in this edition (p. 599) to be open to criticism. The author, however, repeats and fortifies his former statement as to the application of the rule against perpetuities to common law remainders by a reference to In re Ashforth [1995] 1 Ch. 535; but the future gift in that case might well be explained as an equitable or executory limitation, to which the rule against perpetuities would be clearly applicable, so that it was, and still is, premature to treat the application of that rule as established law, either in the case of common law remainders or in the case of common law conditions.

O. A. S.

The Theory and Practice of the Law of Evidence. By WILLIAM WILLS. Second Edition. By the Author and THORNTON LAWES. London: Stevens & Sons, Lim. 1907. 8vo. lxviii and 524 pp. (158.) WE are glad to see that this useful work has now reached a second edition. Founded on a course of lectures delivered to the students of the

Incorporated Law Society as far back as 1889, it first appeared in book form in 1894. During the thirteen years that have elapsed since the last edition various changes have taken place in the law of evidence, and a good many important cases been decided. These have, for the most part, been duly chronicled by the present editors, chief among the statutory alterations being, of course, the Criminal Evidence Act, 1898, the various provisions of which are now incorporated in the text, the Act itself being given in an Appendix. With regard to the cases, the editors appear to have been rather less diligent, for we notice that a good many decisions that might profitably have been included are absent, e. g. R. v. Bond [1906] 2 K. B. 389 (similar facts); Dashwood v. Magniac [1891] 3 Ch. 306 (usage); R. v. Moore, 61 L. J. M. C. 80 (oaths); Cowen v. Truefitt [1899] 2 Ch. 309, and May v. Platt [1900] 1 Ch. 616 (mistake in documents); and Higgins v. Dawson [1902] A. C. 1 (interpretation). The Poulett (not Powlett) Peerage case [1903] A. C. 395 is cited, but not for the principal point established.

6

The passing of the Criminal Evidence Act, 1898 has apparently induced the editors to revise the whole subject of the competency and compellability of witnesses, and great pains, they add, have been taken to state the existing law fully and clearly. Nevertheless on pp. 130-1 an important misstatement occurs. By virtue,' they remark, 'of the Common Law and sections 2 and 3 of 32 & 33 Vict. c. 68,' neither the parties in breach of promise actions, nor the parties and their husbands and wives in proceedings instituted in consequence of adultery, are compellable witnesses. This, however, is clearly erroneous, as it wholly ignores the operation of the Evidence Acts of 1851 and 1853. The exceptions contained in these Statutes as to breach of promise and divorce having been repealed by the Act of 1869, parties and their husbands and wives in the above proceedings were placed in the same position as to compellability as ordinary witnesses, notwithstanding that they were again rendered competent,' though without the addition of the word 'compellable,' by the last mentioned Act. This was clearly pointed out by the late Mr. Pitt Taylor in his eighth edition, ss. 1353-5, as well as by Lopes J. in Guardians of Nottingham v. Tomkinson, 4 C. P. D. p. 350, the effect of whose remarks is not quite accurately given in Mr. Wills's note on p. 131. A more serious error, perhaps, is to be found on pp. 206-9, where the editors take much pains to maintain that declarations by the parties to a marriage are receivable, as exceptions to the hearsay rule, to prove the marriage, whether the declarants be living or dead, and whether the case be one of pedigree or not. No doubt, where a marriage is sought to be proved presumptively by cohabitation and treatment, the declarations not only of the parties themselves, but of their relatives and friends, may often become admissible. They are received, however, not as evidence of the truth of the declarations, but merely to show the character of the cohabitation and treatment, i. e. as part of the res gesta, the res gesta here being not the marriage itself, but the cohabitation and course of conduct from which it may be inferred. As bare assertions, severed from conduct, they are by the law of England pure hearsay, and not receivable, except as admissions, or as declarations made by deceased relatives on questions of pedigree (Dysart Peerage case, 6 App. Cas. 501-3). Again, the statement of the editors on p. 50 that the legal presumption of death, from a person not having been heard of for seven years, does not arise if there is nothing to indicate that he went abroad,' is not strictly correct. where the absence has merely been from his usual place of resort. A presumption of law will equally arise

From the point of view of the practitioner, perhaps the most valuable part of Mr. Wills's book is the excellent table of public documents and facts, together with their respective means of proof, which is furnished in Appendix A. Some thirty years ago the late Mr. Nasmith introduced this feature into his little work on Evidence, forming Volume IV of his Institutes of English Law; but Mr. Wills's list is of a much more complete and detailed description. That this list has proved of practical utility seems to be demonstrated by the fact that it has now been extended to treble its original length.

On the whole, and although the present volume makes no claim to be exhaustive, we can commend it as a sound and careful survey of the law of evidence.

S. L. P.

Leading Cases on the Law of Evidence. By ERNEST COCKLE. London: Sweet & Maxwell, Lim. 1907. 8vo. xiii and 224 pp. (78. 6d.) CONDENSATION has its virtues, but it is questionable whether Mr. Cockle has not carried the tabloid principle rather too far in his recent little book of leading cases. Some 160 of these have been selected, and their essence is offered in 224 pages of text. To effect this, statements of fact have been curtailed or dispensed with, arguments as a rule sacrificed, and judgments cut down often to a sentence or two. But when all this is done, what becomes of the leading case, or at least of its educational value? We confess that we do not quite appreciate the necessity for this homeopathic treatment, even in the case of students, especially as increased attention is intended to be given to the subject of evidence in future Bar Examinations. Assuming, however, that the necessity exists, Mr. Cockle appears, on the whole, to have done his work effectively. The book starts with an excellent analytical Table of Contents, all the headings and sub-headings of which are in turn illustrated by appropriate typical cases. Brief explanatory notes have also been added wherever necessary. But, beyond this, parsimony reigns, and commendation becomes more difficult; for not a single decision is cited except the leading cases themselves, nor has any attempt been made to bring the law of the latter up to date. Thus, on p. 18, the presumption as to the continuance of life is still given as one of law, though the contrary has frequently been decided; and on p. 175 the old heresy that 'parol evidence is admissible to explain latent, but not patent, ambiguities,' is once more revived, though we had thought that its ghost was long since laid. Again, the important case of Sugden v. St. Leonards is left without any hint of the serious strictures to which it was subjected in the House of Lords and elsewhere; and the Duchess of Kingston's case without the modern qualification that judgments are only conclusive as evidence where there has been no opportunity of pleading them. On p. 99, R. v. Eriswell is represented as deciding that ex parte statements, although made on oath before magistrates, are inadmissible. The decision, however, was precisely the other way, for the Court below had admitted the evidence, and on appeal the judges being equally divided, that decision was affirmed. The inadmissibility of such evidence was, indeed, established by later cases, but no indication of these is supplied by Mr. Cockle. Nor is the author much happier in his statement of the rules as to estoppel; indeed, here, as occasionally elsewhere, accuracy has evidently been sacrificed to compression. It is not correct to say, baldly, that a party to a judgment is estopped from denying the facts on which