That there is no ground for fupporting the intention of the law was only to give a chancery jurifdiction ; becaufe there was a chancery in this Province until the year 1718 ; fince this act paffed, and as foon as ever the chancery powers ceafed to be exercifed, the Courts of Law took them, and have exercifed them to the great fatisfaction of the Province.–That , if they were competent in one cafe, they were alfo in another ; and they have in many inftances gone much farther then in this. That, in conftruing this law, we are to regard the ftate of the Province at that time. There was little Specie ; no Paper Currency ; a medium of trade was wanted ; the act of Parliament had fhewn how promiffory 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 eafily accounted for. Foreign bills of exchange were not in much ufe, Inland Bills not known ; to have ufed the language of the act of Parliament, would have been penning laws in a language not underftood, and it would be abfurd to refer to a fpecies of contracts known and underftood by very few in the Province. That cuftom and practice is with the plaintiff, as there is fcarcely a news-paper which does not forewarn perfons from taking affignments of bonds, bills, notes, &c.–a practice peculiar to this Province, and, therefore, (illegible text)plainly demonftrating, that this law made fuch a change in thefe affignements, as to put an obligor in a worfe fituation in cafe his bond was affigned, than while it continued in the hands of the obligee. That the practice of declarers in this Province on promiffory notes under the ftatute, may with more propriety be refolved into the convenience and eafe of lawyers, than flowing from any principle of law. That the defalcation at is exprefsly confined to perfons having dealings together ; and as a ƒaire ƒacias is admitted not to ly, it muft be a new conftruction of ftatutes, which makes a perfon a fubject of a ftatute in one part, and not in another ; that he may be prejudiced under the law, but can recieve no benefit from it. The Plaintiff's council clofed with a cafe from Lancafter determined by Meffieurs Lawrence and Willing. It was that of Baufman affignee of Henry Bough, affignee of Jacob Stily, affignee of Henry Waggoner. The action was brought on a note of hand for one hundred and four pounds. Plea, payment. Defendant offered to fhew in evidence and agreement, figned by Waggoner, the original promiffee, made at the time the note was given, tending to fhew a want of confideration. Plaintiff objected–The court held it could not be offered, as it would effectually deftroy the negotiability of notes ; and faid it would be attended with the moft dangerous confequences, if the claim of an honeft affignee of a bond, or note, fhould be defeated by and bargains, or agreements, made at the given fuch notes, or bonds and not expreffed therein. The evidence was accordingly over-ruled.
The court took time, till the 25th April, to confider, and this day gave judgment.