1776.
manner; that the preamble has little weight in the conſtruction of a law, being often made by the clerks in Parliament; that trade and commerce would be beſt promoted by their conſtruction, as it would only impoſe a duty on a perſon taking a bond, to enquire in what ſtate it ſtood.
That in caſe of bonds miſlaid, or loſt, no money could be paid on that; that the intention of the Legiſlature was to make theſe bonds, bills, &c. ſubject to a common law remedy, and ſubſtitute the doctrine of the courts of equity in England in this Province, and no farther. That it was evident, that a general negotiability was not intended; if it had, the Legiſlature would not have varied the expreſſion in thoſe parts of the ſtatutes, expreſsly refering to inland bills of exchange, and making promiſſory notes negotiable as bills of exchange; the act of aſſembly, on the other hand, expreſſing ſuch a recovery by aſſignee as the aſſignor could have had, and confining the recovery to ſuch money as was due at the time of the aſſignment. That this was further confirmed by the laſt clauſe of the act, which prohibits the aſſignee releaſing any money actuallly, or really, due. That cuſtom and practice, which are good exploſitors of laws, are with them; and that the ſtatute of 4 and 5 Ann. being declared on, ſhews it was the ſenſe of the Practitioners, that promiſſory notes are not negotiable here as in England. That as to the defalcation act, it is a remedial law, and to be extended by equity to all caſes within the ſame miſchief; that though that part of it, which gives a ſcire facias, does not apply to this caſe, yet the other part does; and the defendant is fairly within the reaſon of it.
The council for the plaintiff, in reply, admitted the law in England as laid down by the defendant in the caſe of bonds; and, that before the ſtatute, promiſſory notes were only evidence of debt; there was no property transfered; but that the act of aſſembly and act of parliament, being made pari materia, are to receive the like conſtruction. That the conſtruction made by the defendant, would render the act nugatory—That merely to give the aſſignee a right of ſuing in his own name, unleſs ſome ſolid advantage attended it, was trifling, nor would it at all encourage trade and commerce. That a limited negotiability was an abſurdity; it muſt be negotiable, or not; if negotiable. it was ſo in all caſes when honeſtly come by, or not at all. That the intention of the act muſt wholly fail, it aſſignee is only to ſtand in the place of aſſignor, and his recovery made to depend on circumſtances and proofs, which, in the nature of things, are not in his power. That to ſay the aſſignee muſt make inquiry before he meddles with the bond, is begging the queſtion. We contend, that this act of aſſembly meant ſomething, and that was, for the ſake of trade and commerce, to annex a property in the debt, and a currency to the paper, and to improve vigilance in the debtor, to take care either to guard his contract in the firſt inſtance, or in caſe of payment, or other ſatisfaction, to ſee his payments indorſed, or his bond cancelled.
