manner ; that the preamble has little weight in the conftruction of a law, being often made by the clerks in Parliament ; that trade and commerce would be beft promoted by their conftruction, as it would only impofe a duty on a perfon taking a bond, to enquire in what ftate it ftood.
That in cafe of bonds miftaid, or loft, no money could be paid on that ; that the intention of the Legiflature was to make thefe bonds, bills, &c. fubject to a common law remedy, and fubftitute the doctrine of the courts equity in England in this Province, and no farther. That it was evident, that a general negotiability was not intended ; if it had, the Legiflature would not have varied the expreffion in thofe parts of the ftatutes, exprefsly refering to inland bills of exchange, and making promiffory notes negotiable as bills of exchange ; the avt of affembly, on the other hand, expreffing fuch a recovery by affignee as the affignor could have had, and confining the recovery to fuch money as was due at the time of the affignment. That this was further confirmed by the laft claufe of the act, which prohibits the affignee releafing any money actuallly, or really, due. That cuftom an dpractice, which are good explofitors of laws, are with them ; and that the ftatute of 4 and 5 Ann. being declared on, fhews it was the fenfe of the Practitioners, that promiforsy 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 cafes within the fame mifchief ; that though that part of it, which gives a ƒaire ƒacias, does not apply to this cafe, yet the other part does ; and the defendant is fairly within the reafon of it.
The council for the plaintiff, in reply, admitted the law in England as laid down by the defendant in the cafe of bonds ; and, that before the ftature, promiffory notes were only evidence of debt ; there was no property transfered ; but that the act of affembly and act of parliament, being made parimateria, are to receive the like conftruction. That the conftruction made by the defendant, would render the act nugatory–That merely to give the affignee a right of fuing in his own name, unlefs fome folid advantage attended it, was trifling, nor would it at all encourage trade and commerce. That a limited negotiability was an abfurdity ; it muft be negotiable, or not ; if not at all. That the intention of the act muft wholly fail, it affignee is only to ftand in the place of affignor, and his recovery made to depend on circumftances and proofs, which, in the nature of things, are not in his power. That to fay the affignee muft make inquiry before he meddles with the bond, is begging the queftion. We contend, that this act of affembly meant fomething, and that was, for the fake 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 firft inftance, or in cafe of payment, or other fatisfaction, to fee his payments indorfed, or his bond cancelled.