On Saturday, December 7, 1811, shortly before midnight, Mr. Marr, a respectable linen draper, closed his shop at 29, Ratcliffe Highway, in Wapping, East London, and with his young assistant began to replace on the shelves the goods which had been displayed for sale during the day. The household consisted of Mr. Marr, his wife and child, the shop-boy and a maidservant. At about twelve o'clock he sent the maid to a nearby shop to buy oysters for supper. She left the door open but on returning she found it closed and rang the bell. She rang again, but there was no reply. Joined by a watchman an hour later, they both rang and knocked until a neighbour, noticing that the yard door was open, leapt over the fence and entered the house. There he saw a terrible scene. Marr and his assistant lay in the shop, dead, with fractured skulls; Mrs. Marr's body was in the passage, also battered about the head, and the child had been murdered in its cradle. The ripping chisel of a ship's carpenter and a maul were found lying near Marr; bloodstains reddened them and spattered the window. No property had been stolen: indeed about one hundred and sixty pounds in cash and notes were found in the house.

One of the most disturbing features of the law of tort in recent years is the way in which the courts have extended, seemingly without any reference to considerations of policy, the liability for independent contractors. An independent contractor may be defined for the present purpose as any person, other than a servant, who is employed to do work. The definition includes such diverse persons as a builder, a road construction engineer, an electrician, a dentist or doctor attending a private patient, a shoe-repairer, a launderer, a dressmaker, a barber, an airline company, a taxi-driver, a copy-typist, an advisory expert, and a charwoman if not a servant. But a vendor is clearly not a contractor for this purpose (so that if, for example, I order a particular type of gunpowder to be made for me as a purchaser, I am not to be regarded as an employer of an independent contractor, and will not be liable, if the seller's works blow up, under any of the heads of liability to be discussed presently). Similarly it is submitted that a landlord who covenants to repair is not an independent contractor for the tenant; hence such rules of liability for contractors as have been developed would not apply to the tenant. The landlord would be an independent contractor for the law of tort only if it were contemplated that he was to do the repairs himself or by his servants.

In commenting on a decision of the House of Lords, given some fifty years ago, concerning the law relating to unincorporated associations as it affected the Free Church of Scotland, Maitland was provoked to say, “I cannot think that it was a brilliant day in our legal annals when the affairs of the Free Church of Scotland were brought before the House of Lords and the dead hand fell with a resounding slap upon the living body.” It was with a much revitalised hand, however, that the same tribunal, in Bonsor v. Musicians' Union, disturbed the slumbers of that self-same branch of our law, but this time in its application to trade unions. On this occasion, the slap has been described as a blow struck for freedom, and though the ultimate decision is in itself of the first importance, it is perhaps in a consideration of the diverse means employed in reaching that result that the student will find the greatest interest.

Before the coming into force of the 1925 legislation it was possible to state with reasonable certainty the rules for determining which of the assets comprised in a testator's estate could be used for paying general pecuniary legacies and in what order such assets ought to be applied for that purpose. The pecuniary legatee was, in the absence of any indication in the will of a contrary intention, entitled to have his legacy satisfied out of one portion only of the testator's assets, his general personal estate, that is to say, his personalty not specifically bequeathed. It was immaterial whether such personalty was the subject of an effective residuary gift, or was not effectively disposed of by the will: and if the testator had given his residuary personalty in shares and the gift of any share failed, by reason of lapse or otherwise, so that there was an intestacy as to that share, the legacies were still payable out of the whole of the residuary personalty before division, so that the share which was not effectively disposed of bore the burden pari passu with the other share or shares, the gift of which did not fail.

Sir Frederick Pollock once said that the phrase res gesta meant in English neither more nor less than part of the story. This indicates that the idea behind this principle of the law of evidence is fundamentally a simple one, yet the present state of the law is such that a learned judge may confess without shame that he sees as through a glass darkly, and of the writers, Wigmore and Julius Stone, despairing of finding any firm basis for any such principle, favour a fresh start upon a different foundation or foundations. The general impression conveyed to lawyers is of an idea of great amplitude, and one fraught with tremendous possibilities. Lord Blackburn, a Victorian common lawyer, and Harman J., a modern Chancery judge, both jocularly advise any counsel seeking to obtain admission of a doubtful piece of evidence to pin his faith in res gesta. The feeling that at a pinch the doctrine might give some relief is not unjustified. Owing to the many exclusionary rules of the law of evidence, it is rarely possible to tell a plain tale in court. The importance of the res gesta principle is that where it applies it will nullify certain of these exclusionary rules. An act, a declaration accompanying an act, or a mere declaration may form part of the res gesta. Before qualifying for admission, all such evidence must satisfy the test of relevancy in the sense of materiality. In the case of an act, this is normally the only test, at any rate if the act is offered in evidence for its own sake, and not as equivalent to an assertion of fact or opinion.