Page:United States Reports, Volume 1.djvu/36

 Rh  manner; that the preamble has little weight in the contruction of a law, being often made by the clerks in Parliament; that trade and commerce would be bet promoted by their contruction, as it would only impoe a duty on a peron taking a bond, to enquire in what tate it tood.

That in cae of bonds milaid, or lot, no money could be paid on that; that the intention of the Legilature was to make thee bonds, bills, &c. ubject to a common law remedy, and ubtitute 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 Legilature would not have varied the expreion in thoe parts of the tatutes, expresly refering to inland bills of exchange, and making promiory notes negotiable as bills of exchange; the act of aembly, on the other hand, expreing uch a recovery by aignee as the aignor could have had, and confining the recovery to uch money as was due at the time of the aignment. That this was further confirmed by the lat claue of the act, which prohibits the aignee releaing any money actuallly, or really, due. That cutom and practice, which are good exploitors of laws, are with them; and that the tatute of 4 and 5 Ann. being declared on, hews it was the ene of the Practitioners, that promiory 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 caes within the ame michief; that though that part of it, which gives a , does not apply to this cae, yet the other part does; and the defendant is fairly within the reaon of it.

The council for the plaintiff, in reply, admitted the law in England as laid down by the defendant in the cae of bonds; and, that before the tatute, promiory notes were only evidence of debt; there was no property transfered; but that the act of aembly and act of parliament, being made , are to receive the like contruction. That the contruction made by the defendant, would render the act nugatory—That merely to give the aignee a right of uing in his own name, unles ome olid advantage attended it, was trifling, nor would it at all encourage trade and commerce. That a limited negotiability was an aburdity; it mut be negotiable, or not; if negotiable. it was o in all caes when honetly come by, or not at all. That the intention of the act mut wholly fail, it aignee is only to tand in the place of aignor, and his recovery made to depend on circumtances and proofs, which, in the nature of things, are not in his power. That to ay the aignee mut make inquiry before he meddles with the bond, is begging the quetion. We contend, that this act of aembly meant omething, and that was, for the ake 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 firt intance, or in cae of payment, or other atisfaction, to ee his payments indored, or his bond cancelled. That