Wright v. Tatham
112 Eng.Rep. 488 (1837)

  • Marsden died and Tatham was contesting the will.
    • Tatham argued that Marsden was mentally incompetent.
  • At Trial, Wright, who wanted the will to stand, offered as evidence some letters people wrote to Marsden.
    • The text of the letters implied that the writers believed that Marsden was competent.
    • The writers of the letters never testified.
  • The English Court found the letters to be hearsay and were therefore not admissible.
    • The English Court found that there is no way of knowing from the record whether or not the writers had personal knowledge of Marsden’s competency.
      • The letters were implied assertions.
  • This case would have been decided differently under the FRE.  Under the FRE, and implied assertion is not considered hearsay.
    • An implied assertion in one where the declarant is not intended to state a fact to another person.
      • The letters were written for Marsden’s enjoyment, not because the writers wanted to assert that Marsden was competent.
      • If the letters had said, “Marsden is competent” then that assertion (aka a positive declaration) would be hearsay.