The plaintiff has instituted an action to recover of the defendants a sum of money paid on their request, and promise of repayment. The question on the trial, was, whether the sum demanded was paid by the plaintiff, on the credit of the defendants, and on their request; or on the credit of his son, Amos Wheeler, jun. The money, it was admitted, was paid by the plaintiff, on an execution, which had issued against one John Slocum, against the defendants and ten other persons, one of whom was this son of the plaintiff. A witness was produced, by the plaintiff, who testified to his payment of the money, on the request of the defendants, and to their express promise to repay it; but that no written security was required or given. To rebut this testimony, the court admitted proof, that the said Amos Wheeler jun. was the agent of the defendants and others, in the management and defence of the suit, on which the aforesaid execution was granted. The defendants, likewise, exhibited evidence to prove, and claimed that they had proved, that the plaintiff was the agent of his son, in the management of the said suit, during his absence, and that he was absent at the payment of the aforesaid sum of money. The court admitted, in behalf of the defendants, the original attachment in the suit, on which the said execution issued, from which it appeared, that real estate of small value belonging to the plaintiff’s son, was the only property attached; and it was further proved, that the plaintiff’s son and one Grant gave bonds on the appeal of the said suit. On the foundation of the preceding facts, the defendants were permitted to contend, that the money was paid by the plaintiff on the credit of his son, and that the witness adduced by the plaintiff, was mistaken in his testimony; and thus far, no objection has been interposed. But the defendants offered other evidence, which the judge rejected; and on this ground the motion for a new trial is founded.
First, they offered to prove, that the said Amos Wheeler, jun. in settling with the crew of the Yankee, reserved a proportion of their prize money, to pay the execution aforesaid; and particularly, that he retained a part of the prize money of one Peter Washington, for this purpose. Secondly, the defendants offered to prove, that when the aforesaid *106execution was settled, they were poor, and had no ability to pay any part of it.
It has been insisted, that the evidence rejected should have been received, not as evincing, absolutely, that the plaintiff advanced his money, on the credit of his son, but as conducing to prove it. The principle is well established, that it circumstantial evidence be such as may afford a fair and reasonable presumption of the facts on trial, it ought to be received, and left to the consideration of the jury. Gibson v. Hunter, 2 H. Bla. 288. Gardner v. Preston, 2 Day 205. No case has been cited to shew the admissibility of such evidence as was rejected; nor is there deducible from it any fair or reasonable presumption, that the plaintiff advanced his money on the credit of his son. it is not pretended, that the plaintiff had knowledge of there being money in the hands of his son to pay the aforesaid execution; and if he had, the advancement was made in his son’s absence, not on his request; and by necessary consequence, he could be under no legal obligation to repay it. The defendants were obliged to obtain the money, or suffer imprisonment. The payment of the money, on their request, placed them under a legal responsibility to reimburse the plaintiff; and nothing short of proof evincing the son’s liability, and the advancement on his credit, would be sufficient to repel the inference arising from these facts. The evidence offered would scarcely authorize a conjecture, much less afford a reasonable presumption, of the fact proposed to be proved.
The poverty of the defendants warrants no inference, that the plaintiff would not advance money on their credit. Property is not the only object, at which a creditor looks. The integrity, the business, the expectancies, of the defendants, might be reasonable grounds of confidence. And it would be “passing strange,” if the plaintiff had disregarded these considerations, and paid his money, on the credit of his son, without knowledge of his responsibility, to the defendants and others; without his solicitation; and with the unquestionable certainty that there would be placed on him no legal liability to refund.
The evidence offered was too vague to authorize any definite presumption; and the principle of its admissibility would lead to interminable enquiries. If poverty will authorize inferences concerning a person’s agreement; so will wealth, and avarice, and generosity, and benevolence *107Every intellectual and moral property, and every shade of difference in the external condition, of a man, may, on this principle, be exhibited, as evidence, to sustain or destroy his contracts, and to defeat the express testimony of witnesses. The source from which facts are to be established in courts, must warrant something rational and probable, and must not terminate in mere possibility.
The other Judges were of the same opinion.New trial not to be granted.