The opinion of the court was delivered by
Gibsón, C. J.Baker’s Case, 5 .Co: 104, is an-explicit authority, that a refusal to join in a demurrer properly tendered, is a waiver of the evidence; to give effect- to which, it is the business of the court to direct the jury to disregard it. But, whether a party can properly tender a demurrer to parol evidence, seems not so clear. The weight of the authorities seems to be, that where such evidence is certain, and as little susceptible of variance as written evidence, it stands on the same. footing.- ' Where it is loose, and made up of circumstances, which may be urged to a jury with more or less success as evidence of other circumstances, it certainly is not settled, that it may be made the subject of a demurrer, without the assent of both .parties. Yét, ■ occasional-expressions are-not wanting to favour an opinion entertained by some, that the party producing such evidence, may be required' to join, -on having secured to him the benefit of every circumstance.which the evidence might legitimately conduce to prove. The demurrer to evidence originally grew out of necessity; there having been no other means of securing to a party, the right of having the law of his ease decided by the constitutional tribunal, when there was in reality no fact in dispute; and it fell into disuse only when the increasing liberality-of the English judges in granting new trials, afforded’a more convenient method of obtaining the judgment of the superior courts at Westminster. With us, there is perhaps, some reason why the use of it should he retained, and even encouraged, inasmuch as the opinion of the court in the last resort, cannot be had on a motion for a new trial-in the Common Pleas. No one can be prejudiced by it, as.it is, at best, a desperate remedy for him who has recourse to it; and it would be hard to deprive him of the miserable advantage it affords in comparison with a trial before a prejudiced or predetermined jury. Be that as it may, our provincé is not to legislate, but to pronounce the law as we. find it, the legislature being alone competent to alter it where there is room to dissent from the reason or policy of its provisions. Without intimating an opinion as to any other case, then, it may be affirmed, that where there is a demurrer to evidence of a fact, which is not evidence of any *432other fact, but itself a substantive ingredient of the ease, a party may be required to join.
What then, was the evidence here? At no time previous to the assignment, had Jackson a transaction with Crawford. Beatty, to whom Jackson is indebted, comes to him along with Crawford, and desires him to assign .his judgment against Lambert, in payment of his debt to Beatty. Jackson does not open his lips to any one, except to require his bonds of Beatty; one of which being delivered up, and a receipt for the residue endorsed on another, he marks, by direction of Beatty, the judgment to Crawford’s use. This comprises every title of the transaction in the presence of the parties. ' The judgment having afterwards been found worth» less, a common friend calls on Jackson, who appears to think himself liable (the. witness does not say to whom) for the amount' of. the judgment; and he afterwards attempts to collect the money from Lambert. Now it is not pretended, that there was any implied contract of warranty, on which Crawford could have recourse to Jackson; and it has already been twice decided, that the facts which happened at the'time of the transfer, give no colour to the. pretext of a special agreement. Indeed, those facts áre not relied on by Crawford himself, who claims the inference of such án agreement, from Jackson’s subsequent admission of liability to some one. But this admission is attributable to a belief, that he remained liable to Beatty; who, had he not agreed .to accept of the assignment to Crawford as satisfaction, might still have recovered his debt, on the ground, that the means of payment which were put into his hands, or (what is the same) into the hands of' a person designated by him, .had proved' unavailing. But, the delivery of the bond would be decisive proof, that he had consented to consider the assignment as satisfaction; and, if Crawford, also has barred himself from proceeding against Beatty, he cannot get round the impediment, by going against Jackson, who did not consent to be-, coméliabíe to him. Jackson, therefore, was mistaken in supposing himself liable to any one; and to infer the existence of a secret agreement of warranty, from acts done under a mistaken belief .of liability, and- that, too, in the teeth of a witness who testifies to the contrary, would be forced and unnatural. A jury may make all natural and reasonable deductions; but, they cannot madly assume facts at pleasure, and without the colour .of evidence.- The subsequent conduct of Jackspn is attributable to an imaginary liability to Beatty, not to the consciousness of a' secret agreement with Crawford, for which there is not the least ground of suspicion. It seems, therefore, that the judge Who tried the cause did right in directing the jury, that the refusal to join in the demurrer, was a waiver of the evidence. '
Huston, J. dissented. Tod, J., having been of counsel in the cause, took no part in the decision.Judgment affirmed.