Mr. Justice Sharswood
delivered the opinion of the court, October 1st 1877.
There are cases which seem to lie on the very border-line between the provinces of the court and jury, in which the application of the rule that requires them to be carefully distinguished is very difficult. At one time, indeed, it was the admitted doctrine that if there was any, the least evidence, a mere scintilla, the question must be submitted to the jury. But that doctrine has been very justly exploded, both in England and this state. There must be evidence of such a character that the mind may reasonably rest upon it, though it may be with some hesitation. A jury ought never to be left to mere conjecture, when sympathy, or some other equally improper motive, will be sure to turn the scale. It is not too much to insist that there shall be evidence of circumstances of which the conclusion asked for may be reasonably predicated.
This case is on the very dividing-line, and it must be admitted that it is not of easy determination. The decedent expressly agreed, as one of the terms of his loan to his son, not to collect the principal, unless his circumstances were such as actually to require it. It is conceded that the right to require payment was in him. He died, and we have certainly no direct evidence of any such requisition. Was there evidence of any facts from which the jury might reasonably have drawn such an inference? The learned judge below thought that there was not, and we are not prepared to say that in this there was manifest error.
Two facts are relied on to show that there had been such a demand. The first is that there was a payment to the decedent in his lifetime on account of the principal. But as the decedent might have been satisfied with such part payment — in other words, as his circumstances may have been such as only to require that much, how can it be inferred from that alone that he had demanded the whole ? The second is, that the defendant voluntarily paid a bill against his father, without his request or knowledge, while he was sick. But this is more unsubstantial, as a ground of inference, than the first. The act of the son to relieve his father from the importunity of a creditor while he was not in a condition to attend to business, may be referred to his filial affection and gratitude; and after all, it Avould only be evidence of a demand to that amount. If indeed it had appeared that the deceased had died insolvent, so that the principal was required to pay his just debts, the case presented would have been entirely different. But the evidence fell far short of this. It is admitted that at the date of the note, which was for $3000, the decedent Avas the owner of real estate worth $18,000 and upwards. This was only four years before his death. That ho had debts, and was pressed for payment; that he OAved at that time $6700, and that between that and the day of his death his indebtedness had increased $1866, might all well be without his feeling that he ought to call on his son for more of the principal of this note than Avas actually paid.
As the offer to prove the declaration of the decedent to a third person, that he Avas expecting money from his son, but could not get it from him, did not specify whether it was before or after the date of the partial payment, it was rightly rejected, even conceding that such a declaration Avould have been admissible, for if it Avas prior to the partial payment, it might have referred to the demand for that, and so been entirely inconclusive as to a demand for the whole principal or the balance remaining unpaid.
Wo think a verdict in favor of the plaintiff would have been without sufficient evidence to sustain it, and the learned judge below was therefore right in taking the case from the jury.
Judgment affirmed.