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occurrence or transaction, are relevant. (11.) Facts, not otherwise relevant, are relevant (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves, or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.” This definition, founded on the view that the theory of relevancy is “only a particular case of the process of induction, or that it depends on the connection of cause and effect,” has been criticized by Mr. G. C. Whitworth in a book called “The Theory of Relevancy for the purpose of Judicial Evidence," Bombay, 1875. Briefly stated, the criticism was that the definition did not provide for the case of relevancy where facts were links in two chains, having a common link in some other part of their length; a criticism which is said to have been justified by the decision in the case of R. v. Parbhudas (L. J. 27th May 1876). Mr. Whitworth indulged in very elaborate abstractions, of which we may take the following from his second rule as specimens :—" (1.) Facts which are a part of, or which are implied by, a fact in issue, or which show the absence of what might be expected as a part of, or would seem to be implied by, a fact in issue. (4.) Facts which are an effect of a cause, or which show the absence of what might be expected as an effect of a cause, of a fact in issue.” Mr. Stephen has in consequence enlarged his definition in the present work, and has acknowledged his obligations to Mr. Whitworth. Instead of giving the amended edition, however, we prefer to print that offered by Mr. F. Pollock, Q.C., the author of an extremely valuable book on “ The Principles of Contract.” It appears in the Fortnightly Review for October 1876 :-“ Facts, whether in issue or not, are relevant to each other when the one shows that the other must or cannot have occurred, or probably does or did exist or not, or that any fact does or did exist or not, which in the common course of events would either have caused, or have been caused by the other, and in particular when one is, or probably may be, or probably may have been,
“ the cause of the other,
an effect of the same cause,
“a cause of the same effect.” This is much the same as Mr. Stephen's definition, only a little more logical; and if it is possible and desirable to give logical expression to that manifold interlacement of events, commonly called relevant facts, perhaps nothing better could be constructed. Mr. Stephen says that his Article IX. (containing the definition) “would suffice to solve every question which can arise upon the subject;" and he admits that his scientific phrases might be rendered very shortly by saying that “every fact is relevant to every other, if it affects in any definite way the probability of its occurrence.” The critics have been hard on Mr. Stephen. Mr. Pollock disputes the propriety of having any definition, when the admission and rejection of evidence must in practice remain a question of common sense. Others think that the Law of Evidence should confine itself to those positive limitations which "the importance of shortening proceedings, the importance of compelling people to procure the best evidence they can, and the importance of excluding opportunities of fraud” have imposed on abstract relevancy. The Solicitors' Journal waxes indignant against the rashness of legal propositions so vague, that one does not see at first what they include and exclude. We confess these criticisms seem to us beside the mark. The difficulties of a complete definition are great; but what is lost by substituting for the varying common sense of a number of Judges this bona fide effort to make judicial ideas precise ? The danger is imaginary. The judicial instinct would still have free play, but its attention would have been called to the logical conditions of proof, and it would be so far educated and strengthened.
A leading feature in Mr. Stephen's book is the distinction between relevant facts and proof, or the means by which these facts are proved in Court. Its utility is seen in the discussion of res geste. The phrase applies to statements made by or to the person, whose act is in question, and accompanying or explaining that act; conduct of the person against whom an offence has been committed, and especially recent complaints made in the proper quarter; and when a person's conduct is in question, statements made in his presence and hearing by which his conduct is likely to have been affected. Mr. Dickson treats of res gestæ as exceptions to the rule excluding hearsay, and also to the rule excluding statements made (not on oath) by a party in his own favour. We prefer that they should stand as a separate class of relevant facts, to which the rule of hearsay does not apply. It does not signify that the statements were made by a party or not, or by a person not examined. As Baron Parke said in the case of Tatham (7 A. & E. 353), “The acts by whomsoever done are res gesta, if relevant to the matter in issue. Where any facts are proper evidence on an issue, all oral or written declarations which can explain such facts may be received in evidence." It would appear that according to English law you are not permitted to prove the details of a recent complaint or statement, but only the fact and its general nature. The details may, however, be got on cross-examination, and the practice in England appears therefore to coincide with the law in Scotland.
The same distinction makes itself felt in Mr. Stephen's definition of hearsay: “The fact that a statement was made by a person not called as a witness is not regarded as relevant to the truth of the matter thereby asserted” except in certain cases. Or, as he otherwise puts it," the connection between events and reports that they have happened is generally so remote that it is expedient to regard the existence of the reports as irrelevant to the occurrence of the
events.” It is easy to carry this principle too far, and it has been applied in England so as to exclude from proof conduct of third parties in many circumstances where that conduct would be really unobjectionable evidence. But, as regards statements pure and simple, the rule holds good, and it is impossible not to see that it is equally applicable to the statements of deceased and of living persons. In England statements by a deceased person are admitted by way of exception in these cases: (1.) Dying declaration as to cause of death; (2) declarations made in the course of business or professional duty ; (3.) declarations against interest; (4.) declarations by testators as to the contents of lost will (as in Lord St. Leonard's case) ; (5.) declarations as to public and general rights ; (6.) declarations as to pedigree by blood relatives. The law of Scotland, on the other hand, according to Sheriff Dickson, admits hearsay of deceased persons in all cases where the person whose statement is narrated was admissible when he spoke. It is probably the same qualification which Professor Bell refers to when he says that the deceased person must have had no interest in making the statement. This rule has long been acquiesced in, but it would be difficult to point to any satisfactory origin for it. In the case of Earl of Fife v. Fife's Trustees (29th Nov. 1816, 1 Murray 88), it was stated at the Bar that the rule was supported by no case or writer in the law of Scotland, and Commissioner Adam (who was trained in England) said that “death adds nothing to the hearsay, for the deceased was not called on to collect his mind under the sanction of his death. This is one of the misfortunes of human life, if you lose your witness, you lose your fact.” Lords Pitmilly and Gillies, however, without hesitation, pronounced in favour of the rule as it now stands. They gave no authorities, and Lord Gillies suggests that such evidence may have been admitted in Scotland, because there the Judges formerly decided on the evidence, to which they could give its true weight. This is the only case which may properly be said to have decided the point; and we agree with Mr. More (“Notes to Stair,” p. 411) that the doctrine rests on slender authority, and would require to be carefully considered before “ being admitted to form part of our law. The objections made against hearsay, viz., that it is not evidence on oath, and that it does not admit of cross-examination, seem to apply with full force to the hearsay of deceased persons. But then it is said in support of the Scotch rule that such hearsay is the best evidence that the circumstances admit of, and that there is no ground for suspecting that it is tendered for an improper purpose. The answer is that hearsay of living persons is not excluded merely from a suspicion that it is tendered for an improper purpose, but because it is irrelevant, and if a party has only irrelevant evidence to offer, then the circumstances do not admit of anything being proved.
Under the title what evidence may be given for the interpretation of documents, Mr. Stephen has drawn up nine rules, which are both clear and concise. We quote Nos. 7 and 8, because they raise an interesting question for law reformers. It will be seen that they are founded on V.C. Wigram's book on “Extrinsic Evidence"" (7.) If the document applies in part but not with accuracy to surrounding circumstances, the Court may draw inferences from the surrounding circumstances as to the meaning of the document, whether there is more than one, or only one thing or person to whom or to which the inaccurate description may apply. In such cases no evidence can be given of statements made by the author of the document as to his intentions in reference to the matter to which the document relates, though evidence may be given as to his circumstances and as to his habitual use of language or names for particular persons or things. (8.) If the language of the document, though plain in itself, applies equally well to more objects than one, evidence may be given both of surrounding circumstances and of statements made by any party to the document as to his intentions in reference to the matter to which the document relates.” Such undoubtedly is the result at which the English Judges have arrived, and which received its latest and most authoritative expression in the decision of the House of Lords in Charter v. Charter (L. R. 2 P. & D. 315). In that case the testator appointed “my son Forster Charter ” his executor. His two sons were called “ William Forster Charter" and "Charles Charter," and because the description in the will did not precisely fit either of these, the House of Lords, differing from Lord Penzance, unanimously rejected the proof which was offered of the testator's declarations of intention. The decision was followed in an unreported case before Lord Shand (Fergusson v. Fergusson, 16th June 1876), in which a testator who had two nephews, named Benjamin James Fergusson and Martin Whitehorne Fergusson, from that perversity natural to testators, chose to describe his legatee as Benjamin Martin Fergus
It appeared in evidence, however, that the nephews were known to the testator as James and Martin respectively, and some other family circumstances suggesting a partiality for Martin, he was found to be entitled under the will, the testator's declarations of intention, which were numerous and unmistakable, being excluded. The case was decided on English authorities, for if we except the general rule against nuncupative wills, and a dictum of Lord Pitmilly in Macfarlane v. Watt (15th Feb. 1828, 6 S. 556), there is no Scotch law on the subject. Lord Pitmilly said: “Where there is a latent ambiguity, parole proof may be admitted, but only where the deed cannot get effect without it—as where the lands of Craig are sold, and the seller has North and South Craigs.” The reasons for excluding proof of declarations in every case are sufficiently obvious. To allow it would be to place every testator at the mercy of a few unscrupulous persons who, with very little risk of detection, could concoct and swear to a particular declaration. On the If the ques
other hand, it is impossible, or at least very difficult, to invent and support by a consistent story such pieces of evidence—the habits of the testator, his knowledge, etc.—as are admitted under Rule VII. These are, for the most part, facts which have come under the observation of several persons, and to misrepresent them invites contradiction from the observed tenor of the testator's life. Therefore few will dispute that a will containing an ambiguous and inaccurate description ought to be declared void, if the true intention cannot be made to appear on proof of the circumstances surrounding the testator. Not certainly to punish the testator for the use of the wrong words: but to protect the written word of all testators. The sanctity of a written will is seen in the fact that when no ambiguity occurs, the most overwhelming facts and circumstances telling against the will would not be allowed the smallest weight. But are these sufficient reasons why, when the description fits exactly more persons or things than one, declarations should be admitted ? Mr. Stephen thinks that the question must be decided by logic, and that declarations must be either admitted or rejected under both Rule VII. and Rule VIII. without distinction. tion is, 'What did the testator say?' why should the Court look at the circumstances that he lived with Charles and was on bad terms with William ? How can any amount of evidence to show that the testator intended to write Charles show that what he did write ineans Charles ? To say that Forster means Charles, is like saying that two means three. If the question is, 'What did the testator wish ?' why should the Court refuse to look at his declarations of intention? And what third question can be asked ? What would the testator have meant if he had deliberately used unmeaning words ?' The only answer to this would be, he would have had no meaning, and would have said nothing, and his bequest should be pro tanto void.” This reasoning, although it has the countenance of Lord Selborne in Charter v. Charter, does not seem quite conclusive. It derives its apparent force from the assumption that the will in question contained nothing useful for identification except the mere description of the legatee. But, fortunately, wills generally contain a demonstratio as well as a nominatio. But let us take the pure case of erroneous description without another syllable of direct intention. If extrinsic circumstances raise a strong presumption that the testator would, on the ordinary principles of human nature, favour in his will those persons whom he had favoured during his life, is there anything unreasonable in applying that presumption as the most plausible hypothesis to explain the testator's meaning ? No doubt, he has made a mistake; part, at least, of his language does not mean what he intended it to mean: the whole discussion proceeds on that footing. But it is equally certain (unless the testator desired to leave a legacy of strife and division) that he meant to designate somebody. No doubt, testators sometimes disappoint reasonable expectations, but