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 actually, or really, due. That custom and practice, which are good expositors 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.
