delivered the following opinion:

The question comes up as to the proper practice on the conclusion of the plaintiff’s evidence when the defendant wishes to take advantage of a supposed lack of evidence to make out a prima facie case.

There is no question that under common-law practice, which *76may or may not control this court in this particular jurisdiction, the point could be brought up by what is called a demurrer to the evidence. There is some formality about this form of procedure, as the opposite side has to join in the demurrer, and the result is that the case is absolutely taken from the jury in any event. No more evidence can be offered on either side and the court proceeds to render a judgment.

This procedure, however, has ceased to be common, and the court finds that it is so unfamiliar to the local bar that it is a question whether justice would be done by enforcing it. In some cases it might act rather as a trap than as a mode of getting at justice. For that reason the court will not enforce the practice as to a demurrer to the evidence, and will proceed, as it has been doing for some time, to get at the same result by letting the defendant either move to dismiss, as under the Porto Rico practice, or move for a direction of verdict, as under the more usual Federal practice. The court will consider a motion made in either form as invoking the same power of the court, and, if the motion is granted, will instruct the jury to find for the defendant, or, if the motion is denied, will permit the defendant to go on and put witnesses on the stand. We think that is the proper rule to follow under all the circumstances of this jurisdiction. As to this matter, I conferred with Judge Hale of the Maine district while he was on the Island, and he said that he had found in his jurisdiction that this was far preferable to a demurrer to the evidence.