SCINTILLA OF EVIDENCE. The doc trine that where there is any evidence, how ever slight, tending to support a material is sue, the case must go to the jury, since they are the exclusive judges of the weight of the evidence ; Mercier v. Mercier, 43 Ga. 323 ; Brooks v. Somerville, 106 Mass. 271; Way v. R. Co., 35 Ia. 585 ; Lewis v. Pratt, 48 Vt. 358.
In the United States courts and in Eng land, it has be6n decided that the more rea sonable rule is, "that before the evidence is left to the jury, there is, or may be, in every case, a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the bur den or proof is imposed" ; Marim County Cemrs v. Clark, 94 U. S. 278, 24 L. Ed. 59 ; 3 C. B. N. S. 150.
The old rule is likewise exploded in sev eral of the states, whose courts are now in the constant habit of ordering nonsuits ; Con nor v. Giles, 76 Me. 132 ; Bailey v. Kimball, 26 N. H. 351; Colt v. R. Co., 49 N. Y. 671; or giving peremptory instructions to the jury to find for one party or the other ; Wittkow sky v. Wasson, 71 N. C. 451; Fort Scott
Coal & Min. Co. v. Sweeney, 15 Kan. 244 ; or of sustaining demurrers to the evidence, in cases where there is confessedly some ev idence supporting a material issue. This is done -under the guise of various expressions, seem to leave the ancient prerogative of the jury intact. In Maryland, the judge achieves this result by determining the legal sufficiency of the evidence ; Cole v. Hebb, 7 Gill & J. (Md.) 20 ; and in Missouri by de termining its legal effect; Harris v. Woody, 9 Mo. 113. See Thomps. Charg. Jury § 30 ; Thomps. Jur. § 2246. Judge Dillon (Law and Jurisprudence 130) strongly disapproves the scintilla doctrine, quoting substantially the language above quoted, which was used also by Miller, J., in Pleasants v. Fant, 22 Wall. (U. S.) 116, 22 L. Ed. 780, which he says fol lows the English doctrine. He quotes the approval of certain judges of his view.