Correspondence
| Author | Colin Tapper |
| DOI | 10.1350/ijep.8.1.68.36507 |
| Date | 01 January 2004 |
| Published date | 01 January 2004 |
| Subject Matter | Correspondence |
68 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
CORRESPONDENCE
CORRESPONDENCE
Wright
v
Doe d. Tatham
in the House of Lords
Dear Editors
In his historical note entitled ‘The Common Law on Implied Assertions
Reconsidered: Wright v Tatham in the House of Lords’ (2003) 7 E & P 270–3, Samuel
Wong correctly notes that various commentators in considering the law relating
to the admissibility in evidence of implied assertions ignore the later stages of
the saga of Wright v Doe d. Tatham. He is incorrect in his apparent implication that
this is a matter of neglect (in the sense of oversight), certainly so far as my own
commentaries are concerned. The omission of consideration of the later stages
of the case (after the delivery of the judgment of Baron Parke reported in 7
Adolphus & Ellis) reflects the fact that those later stages were no longer concerned
with the rules relating to implied assertions, but rather with those of the limits
of legitimate inference. Up to that point, the truth, sincerity and accuracy of the
statements implied from the phraseology of the absent authors of the letters
were in issue; after that point, the issue related to the legitimacy of attributing
the rational response to receipt of the letters (whether or not true, sincere or
accurate) to the testator (Marsden) rather than to his steward (Wright). This crucial
distinction between implication and inference may be seen even more clearly in
the contrast between the inadmissibility of the implied statements of sanity by the
absent authors and the admissibility of the explicit statements of madness by
equally absent children. In the latter, the attribution of the reaction to the testator
was not in issue because it could not be denied; in neither instance, in that respect,
is there any hearsay issue at all.
It is true that the case is interesting for the light it sheds on the difference between
acceptable judicial practice in the 1830s and in modern times, perhaps most
astonishingly revealed in the fact that having testified at trial as a character
witness for one of the parties (Wright), Baron Bolland proceeded to give judgment
in one of the appeals in Wright’s favour.
COLIN TAPPER
Magdalen College, Oxford
(2004) 8 E&P 68
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2004) 8 E&P 68
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