the burthen of proof here against the plaintiffs, they may be thought to be not without bearing upon it. The charge against John Kiddell Dawson is, of the fraudulent omission to make a communication. I am not aware of any affirmative evidence against him in support of that charge. Assuming it to be not incumbent on the plaintiffs to adduce conclusive or very strong testimony in support of it, were they entitled to abstain altogether from adducing any? It is true, that it may be said that a communication, if any, from John Kiddell Dawson to the brokers, is a fact more peculiarly within his own knowledge, and of which the burthen of proof is therefore by a general rule cast upon him; and this may be so. But the fact itself as already intimated, and as is indeed obvious, is immaterial, unless it be taken, that, independently of any communication from him, the brokers neither knew, nor had notice 'that he was a minor. The plaintiffs have indeed assumed throughout, that independently of any communication from John Kiddell Dawson, the brokers did not know and had not notice of his minority. But were they entitled to assume it? Is their ignorance of his minority to be presumed, unless the contrary be shewn? "Qui cum alio contrahit, vel est, vel debet esse, non ignarus conditionis ejus." From this maxim of the civil law, as understood by the best commentators who say-" Conditio accipitur pro statu: servus sit an liber: paterfamilias an filius-familias. Item significat ætatem mores, fortunam, valetudinem "-I am not satisfied that, as a general rule, the law of England dissents. Primâ facie, it seems less probable that a man should believe that which is not, than that which is, in the absence of any false assertion. Assuming, however, the possibility that there may be transactions in which the mere fact of a young man engaging himself may justify a belief in those with whom he deals that he is not a minor, I think that the case is not so with regard to transactions of the nature (I ought not perhaps to say the discreditable nature) of those which existed be tween the brokers in question and their unlucky customer. Adolescence is at least as much the age of gambling as any other. The answer of John Kiddell Dawson contains these statements. [His Honor here read the statements of the answer, commencing in page 93; observing, however, that he was aware that part only was read in evidence for the plaintiffs (a). He then read the evidence of the defendants' witnesses, (see ante, p. 99,) and proceeded as follows:] Why is the Court to conclude that the brokers, in the circumstances of such a case as this, did not know or believe the truth? Nor perhaps will it be out of place here to refer to the judgment of a distinguished judge in a wellknown criminal case. Lord Tenterden, in Rex v. Burdett (b), says, "A presumption of any fact is, properly, an inferring of that fact from other facts that are known; it is an act of reasoning: and much of human knowledge on all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference; but, if no fact could be thus ascertained by inference in a court of law, very few offenders would be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given: the man who is charged with theft is rarely seen to break the house or take the goods; and, in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. (a) The portions read in evidence were, from the commencement in page 93 to the asterisk in page 95, and also some subse quent passages as to the execu- (b) 4 B. & Ald. 161, 162. 1847. STIKEMAN v. DAWSON. 1847. STIKEMAN v. DAWSON. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but, in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected." Now treating Lord Tenterden's observations as applicable to this case, in which, though civil, the charge is, that a minor was guilty of fraud, it may be asked whether the facts proved between him and the plaintiffs do not, in the absence of explanation or contradiction, warrant a reasonable and just conclusion that the brokers were not unaware of the minority of their youthful looking townsman, whom they were in the habit of seeing and talking and dealing with, the son moreover of a merchant of the same town. I am not prepared to say that they do not warrant such a conclusion. And I repeat that the question of communication or no communication from him to them does not, as I conceive, become material, or arise, until their ignorance without such a communication has been proved or assumed. As, however, it may be questionable whether it ought to be inferred between these parties, that during the transactions in question, or any part of them, Messrs. Middleton & Barber thought John Kiddell Dawson under age, or had notice of his minority, I proceed, to consider the plaintiffs' last position, their contention, namely, that on the assumption of the young man's acquaintance with his minority, and with the law on the subject, and also of the broker's belief during their dealings with him, that he was Sicut 1847. STIKEMAN v. DAWSON. 1847. STIKEMAN v. DAWSON. who says, that in what cases in particular a court of equity will thus exert itself it is not easy to determine. The Nor indeed is the jurisdiction of equity the only jurisdiction where difficulties on this subject have arisen, or may arise: courts of law have not been free from them. capacity of infants to commit crimes, their punishableness for criminal offences, their liability civilly for various wrongs not connected in any sense with contract, as for instance, battery and slander, to say nothing of the clear right in some circumstances to maintain trover against them, are of universal recognition. But questions which have not been considered free from difficulty have arisen, whether or how far persons are civilly liable at law for wrongs, or such acts as, if they were the acts of adults, would be wrongs, done during infancy when connected, or supposed to be connected, with contracts. The case of embezzlement by the servant or apprentice, Bristow v. Eastman (a); that of detinue in New Reports, Mills v. Graham (b); and an old case in Roll. Abr., tit. "Court de Admiraltie," with regard to an infant master of a ship, are instances of this kind, in which the objection of minority did not prevail: while in other instances of the class, as the case of Johnson v. Pie (c), reported by Levinz, Siderfin and Keble, where it was ruled that an action of deceit would not lie for a false assertion by the defendant, when an infant, that he was of age; the case mentioned in Keble of an assertion by an infant that a false jewel not belonging to him was a diamond and his own; the case of the infant innkeeper, mentioned in Roll. Abr., tit. "Action sur case;" and, in modern times, Jennings v. Rundall (d), the case of overriding a hired mare; and Green v. Greenbank (e), the case of exchanging mares, where the infant falsely (a) 1 Esp. 172; Peake, N. P. C. 223. (b) 1 N. R. 140. (c) 1 Lev. 169; 1 Sid. 258; 1 Keb. 905. (d) 8 T. R. 335. |