¶1delivered the opinion of the Court:
¶2This was an action on the case, by Johnson, against Pole-man, for deceit, in which it was charged, that in the sale to Johnson by Poleman of eighteen shares of full-paid stock in the Chicago Metallic Cement Manufacturing and Roofing Company, Poleman cheated Johnson by fraudulently inducing him to believe that the stock was valuable, when, in fact, it was wholly worthless, and that Poleman, at the time of sale, knew the stock to be worthless.
¶3The proof in the case utterly fails to support the charge.
¶4At the close of the evidence given in behalf of plaintiff, the defendant below (appellant) moved the court to exclude the evidence from the consideration of the jury. The court overruled the motion. This motion ought to have been sustained. Assuming all of the evidence, in behalf of plaintiff, to be true, and adopting as true every hypothesis which might not unreasonably be inferred from such proofs, still a case is not made out against the defendant below. There is, in truth, no evidence whatever tending to fasten upon appellant the charge of fraud.
¶5Whether there is any evidence tending to prove any given material allegation of a declaration, is a question of law for the court to determine. Where there is any one essential allegation of a declaration which has no proof tending to support it, it is the duty of the court to exclude from the consideration of the jury all the evidence in the case, or to charge the jury that there is no evidence to support the supposed essential allegation of the declaration, and that, for want of such proof, they must find a verdict for the defendant. Where there is some evidence tending to support every essential aliegat ion of a declaration, it is the province of the jury to say how much weight is to be given to such evidence, and to determine whether the evidence given on each proposition is sufficient, in the judgment of the jury, to establish or prove the proposition; but. as said supra, it is, in the first place, the province of the court to determine, as a matter of law, whether there is any essential allegation of the plaintiff, in support of which no evidence has been given. "Where this is the ease there is no question of fact to be submitted to the jury.
¶6By former rulings of this court it has been determined, that under our statute the circuit court can not order, peremptorily, a non-suit and a discharge of the jury. This does not, however, take from the circuit court the power, nor relieve the circuit court from the duty, in a proper case, to instruct the jury that, under the proofs, there is no question of fact for them to consider, and that it is their duty to return a verdict as in case of non-suit.
¶7Judgment is reversed, and the cause remanded.
¶8Judgment reversed.