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Browsing: Legal Papers of John Adams, Volume 1

This foot note contained in document ADMS-05-01-02-0006-0001-0001
3. Act of 10 Dec. 1698, c. 22, §1, 1 A&R 356. See Watts v. Hasey, Quincy, Reports 194 (SCJ Suffolk, Aug. 1765). This statute was the first to provide specifically for mortgages, although after 1648 the judges of the Court of Assistants in the Massachusetts Bay Colony had had power to determine “any matter of apparent equitie, as upon the forfeiture of an Obligation, breach of Covenant without damage, or the like.” The Laws and Liberties of Massachusetts 32 (Cambridge, Mass., 1929). Under this act the court would “chancery” a bond, presumably to the actual amount of the debt. See, for example, Bennet v. Gridley (1677), Records of the Court of Assistants of the Colony of Massachusetts Bay, 1630–1692, 1:82 (Boston, ed. John Noble, 1901); Dyre v. Hutchinson (1684), id. at 261. After 1692 in several Province Acts, rejected by the Privy Council on various grounds, the common-law judges were given power to chancer penal bonds. See, for example, Act of 25 Nov. 1692, c. 33, §14, 1 A&R 75. Relief on penal bonds was accorded at law in England by 8 & 9 Will. 3, c. 11, §8 (1698). See Samuel Williston and George J. Thompson, A Treatise on the Law of Contracts, §§774, 775 (Boston, rev. edn., 1936).