At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence, tbe defendant made motions in tbe court below for judgment as in case of nonsuit. O. S., 567. We think the motions should have been granted.
From a careful review of tbe evidence, we do not think it is of sufficient probative force to have been submitted to tbe jury. It raised a suspicion, a conjecture, a guess, a surmise, a speculation, but there must be more than this, more than a scintilla of evidence, to take a case to tbe jury, and we do not find it on this record.
“A verdict or finding must rest upon facts proved, or at least upon facts of which there is substantial evidence, and cannot rest upon mere surmise, speculation, conjecture, or suspicion. There must be legal evidence of every material fact necessary to support the verdict or finding, and such verdict or finding must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.” 23 C. J., pp. 51-52. S. v. Johnson, ante, 429.
We see no reason to set forth the evidence. It was fully discussed and the case ably argued on the hearing. We have gone into the record fully and thoroughly, mindful of the fact that a jury has passed on the evidence, but with the responsibility resting on us we cannot say the evidence, which was wholly circumstantial, was sufficient for the court below to have submitted it to the jury. The judgment below is