Page:United States Reports, Volume 1.djvu/37

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26
Cases ruled and adjudged in the

1776.

That there is no ground for ſuppoſing the intention of the law was only to give a chancery juriſdiction; becauſe there was a chancery in this Province until the year 1718; ſince this act paſſed, and as ſoon as ever the chancery powers ceaſed to be exerciſed, the Courts of Law took them, and have exerciſed them to the great ſatisfaction of the Province.—That, if they were competent in one caſe, they were alſo in another; and they have in many inſtances gone much farther than in this. That, in conſtruing this law, we are to regard the ſtate of the Province at that time. There was little Specie; no Paper Currency; a medium of trade was wanted; the act of Parliament had ſhewn how promiſſory notes had been made a medium of commerce; they took it for their guide, and extend it to bond and penal bills. That the variance in wording the act is eaſily accounted for. Foreign bills of exchange were not in much uſe, Inland Bills not known; to have uſed the language of the act of Parliament, would have been penning laws in a language not underſtood, and it would be abſurd to refer to a ſpecies of contracts known and underſtood by very few in the Province. That cuſtom and practice is with the plaintiff, as there is ſcarcely a news-paper which does not forewarn perſons from taking aſſignments of bonds, bills, notes, &c.—a practice peculiar to this Province, and, therefore, moſt plainly demonſtrating, that this law made ſuch a change in theſe aſſignments, as to put an obligor in a worſe ſituation in caſe his bond was aſſigned, than while it continued in the hands of the obligee. That the practice of declarers in this Province on promiſſory notes under the ſtatute, may with more propriety be reſolved into the convenience and eaſe of lawyers, than flowing from any principle of law. That the defalcation act is expreſsly confined to perſons having dealings together; and as a scire ſacias is admitted not to ly, it muſt be a new conſtruction of ſtatutes, which makes a perſon a ſubject of a ſtatute in one part, and not in another;—that he may be prejudiced under the law, but can receive no benefit from it. The Plaintiff’s council cloſed with a caſe from Lancaſter determinded by Meſſieurs Lawrence and Willing. It was that of Bauſman aſſignee of Henry Bough, aſſignee of Jacob Stily, aſſignee of Henry Waggoner. The action was brought on a note of hand for one hundred and four pounds. Plea, payment. Defendant offered to ſhew in evidence an agreement, ſigned by Waggoner, the original promiſſee, made at the time the note was given, tending to ſhew a want of conſideration. Plaintiff objected—The court held it could not be offered, as it would effectually deſtroy the negotiability of notes; and ſaid it would be attended with the moſt dangerous conſequences, if the claim of an honeſt aſſignee of a bond, or note, ſhould be defeated by any bargains, or agreements, made at the giving ſuch notes, or bonds, and not expreſſed therein. The evidence was accordingly over-ruled.

The court took time, till the 25th April, to conſider, and this day gave judgment.

Chew,