At the close of plaintiff's evidence and at the close of all the evidence, the defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and in this we think there was error. This action was tried at February *687Term, 1931. The case of Shuford v. Brown, was banded down 20 May, 1931, ante, 17. In tbat case we set forth thé facts and law applicable thereto. The present case is similar, and we see no good reason to go oyer the matter again.
In the above case we said, at p. 25: “Mere scintilla of evidence, or evidence raising only suspicion, conjecture, guess, surmise or speculation, is insufficient to take the case to the jury.”
In Denny v. Snow, 199 N. C., at p. 774, the principle is thus stated: “ 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.”
In the present case all the evidence was to the effect that the stock was sold in good faith by defendant to J. A. Yarborough personally, who gave his note to defendant for same. The payments on the note were made by Yarborough to the bank, where defendant had the note discounted, and defendant had no knowledge from what source the money came to make the payments.
It is well settled that the competency, admissibility and sufficiency of the evidence is for the court to determine, the weight, effect aiid credibility is for the jury. The duty imposed on the court is one that should be carefully and jealously guarded so that there should be no judicial despotism.
The learned and able attorney who argued this case, called attention to the fact of the jury finding in this case and the weight that should be given it. In this he is correct. Const., Art. I, sec. 19, is as follows: “In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.” It may be that the eloquence of the counsel, as it is often said, “swept the jury off of their feet.”
Pilate asked “What is truth? and would not stay for an answer.” Bacon’s Essay on Truth. It is related, and the incident is worthy of preservation, that the great John Wesley was a firm believer in vox populi, vox Dei, and one morning at the breakfast table he was quoting and discussing this idea, when his sister turned to him and said: “John, whenever I hear you quote 'the voice of the people is the voice of God’, there rings in my ears jCrucify Him! Crucify Him.’ ”
*688Plaintiff’s own witness, J. A. Yarborough., on cross-examination by defendant, stated "My original note was for $750.00, on which I paid $850.00, leaving a balance of $$00.00.” And “the Y. &. B. Corporation did not ever redeem any stock for Mr. Scruggs or take up any stock for B. L. Scruggs. In November, 1926, the Y. & B. Corporation was a going and solvent concern.” The judgment below is