[bond – new trial – evidence, presumption of life]

Mitchell v. Eales

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 10 February 1842

Source: Sydney Herald, 11 February 1842 [1]

This was an action on a bond condition for the payment of an annuity by the defendant to the plaintiff on the life of an individual who was proved to be in existence in the beginning of October, 1840. The action was brought in January, 1842, in the Supreme Court of New South Wales. It was contended for the plaintiff, on the trial, that the presumption of life, not being rebutted by any evidence from the other side, had entitled the plaintiff to the verdict of the Assessors, although on the trial they had found for the defendant.   

Mr. DARVALL, in now applying for a new trial, cited the cases of Doe on the Dem. of   Knight   v. Nepean, 5B. and Ad. p. 86., the case of Hopewell v. De. Pinna, 2 Campbell, p. 113, and another case in Bingham's New Cases, in support of his argument. In one of these a verdict had been set aside, on the ground of its being against the weight of evidence. To the same purpose he cited the case of Rex v. Twining, 2, Bar. And Al. 386. On the strength of these authorities the learned Counsel relied on the court for setting aside the verdict, and entering one for the plaintiff; or, for granting a new trial.

Mr. WINDEYER, for the defendant said, that the issue the Assessors had had to try, was “whether Houston Mitchell was alive or not.” The Assessors had not found on the evidence that that party was alive, and therefore on that finding the defendant had a verdict, which the learned   counsel submitted there was no legal authority which would warrant their Honors in setting aside this verdict. The learned counsel contended that the principle that had been relied on respecting the presumption in favour of life, would not make for the plaintiff; for that principle, unsupported by any other circumstances, such as age, health, &c., had been pronounced by the Court of Queen's Bench, in the case of the King v. the inhabitants of Harbonne, 2 Ad. & Ellis, to be absurd. He, Mr. Windeyer, had, he admitted, contended at the trial, that it was for the plaintiff to prove Houston Mitchell to be alive at the commencement of the suit; and on that point Mr. Justice Burton had directed against him but although this position of his, Mr. W.'s, was incorrect, it was quite clear that the above cited case would not admit that any conclusive presumption should arise in favour of life, where the life was merely proved to be continuing two years before suit. The evidence on the trial was that the party whose life was in question had been living for a long time in this country, had been for some time in a declining state of health before he had been seen by the witness, that at the time he was seen he was better; that there had been a very severe winter since the party had been in England, and that he had allowed an enormous sum to get into arrear before any action had been brought. There were circumstances which the assessors were fully justified in taking into consideration, as modifying the effect of the presumption of law which had been mentioned to the Court; and the assessors having taken these matters into consideration, they had not, as was shewn by their verdict, heard sufficient evidence to induce them to find for the plaintiff; and thus to decide that Houston Mitchell was alive. And this finding was perfectly consistent with justice and the circumstances of the case. For although the plaintiff would not be prevented from again coming to the Court when better furnished with evidence, the defendant might never be able to recover his money again, if after paying it, he were to find too late that the life, upon which the annuity was dependent, was extinct.

            Their HONORS decided that there must be a new trial.

            The Chief Justice observing, that they had not heard sufficient to include them to question the established principle of presumption in favour of life, where the individual in question had been proved to be living within seven years.              

[1] See also Australian, 12 February 1842.

                The Sydney Herald published a correction on 12 February 1842:

                “ERRATA IN YESTERDAY'S LAW REPORT. – In the first line of the Report of Mitchell v . Eales, for “condition” read “conditioned.”   In the argument of Mr. Windeyer in the same case, for the words “which the learned counsel submitted there was no legal authority, which would warrant their Honors in setting aside this verdict,” read “which, the learned Counsel submitted, no legal authority would warrant their Honors in setting aside.” …”