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Browsing: Legal Papers of John Adams, Volume 1


Docno: ADMS-05-01-02-0006-0001-0002

Author: Prout, Timothy
Date: 1763-02

Prout's “Bill in Chancery”1

Suffolk Superior Court, Boston, February 1763

Province of the Massachusetts bay Minot v. Prout Bill in Chancery To the honble. his Majesty's justices of the Superior Court of judicature &ca. to be holden at Boston within and for the county of Suffolk on the third tuesday of February A.D. 1763
Humbly petitioning showeth Timothy Prout of Scarborough in the county of Cumberland Esqr.
1. That well and true it is that the said Timothy on the said tenth of December A.D. 1753 became bound unto the said Christopher Minot in the sum of two hundred pounds lawfull money of this province conditioned to pay the sum of one hundred pounds like money with lawfull interest on or before the tenth of December A.D. 1754. And the said Timothy as a collateral security to the said Christopher for payment of the same sum and interest by deed of mortgage bearing date the said tenth of December A.D. 1753 conveying to the said Christopher a certain messuage in Milk Street in Boston aforesaid bounded as in the same deed recorded in the registry of deeds in the said county of Suffolk copy whereof duly attested your orator hath ready to exhibit to hold to him the said Christopher and his heirs if the said sum of one hundred pounds and interest should not be paid.
2. That afterwards your orator upon the first of October A.D. 1755 became bound unto one William Brown of Beverly in the county of Essex Esqr. in a penal sum conditioned for the payment of the sum of one hundred and eighty four pounds lawfull money and interest on or before the first of October A.D. 1756 and more fully to secure to the said William the payment of the Same sum and interest according to the tenor of the same condition your said orator on the day of the date of the last mentioned bond and collateral thereto executed a deed of Mortgage to the same messuage and land which had before been mortgaged to the said Christopher to him the said William and in the same Mortgage expressly mentioned the said former mortgage made to the said Christopher as by a copy of the said mortgage made to the said William which the said Timothy hath ready to exhibit to this honorable court may appear.
{ 240 }
3. That afterwards the said William Brown put in suit the mortgage made by your orator to him as aforesaid and at the inferior court of common pleas held at Boston aforesaid on the first Tuesday of October A.D. 1757 recovered judgment for possession of the said mortgaged premises and cost of court taxed at three pounds fifteen shillings and five pence unless the said Timothy should pay the sum of two hundred and seven pounds lawfull money within two months from the rendring of the same judgment and the same sum not being paid the said William soon after the expiration of the said two months actually entred into the said mortgaged premises and became seised thereof in his demesne as of fee and hath ever since held and possessed the same and still does so and the cost aforesaid was paid by your orators attorney.
4. And your said orator further humbly suggests to your honors that the said William after he had actually entred into the said mortgaged premises as aforesaid the better to strengthen his title thereto he on the thirteenth of December A.D. 1758 purchased of the said Christopher the prior mortgage aforesaid and at the same time the obligation now sued on both which were in reality for one and the same debt and the said Christopher assigned them both to the said William.
5. And your said orator doth in fact affirm allege and say and is ready to prove that the said mortgaged premises were worth on the same thirteenth of December much more than the sums equitably due on both the mortgages aforesaid, that the said William reserving good part thereof in his own care rented the residue for twenty pounds a year lawfull money and the same William held himself well content with the said mortgaged premises in satisfaction of the same debts.
6.2 Further after that on the twentieth of March A.D. 1760 the dwelling house on the said mortgag'd premises was burnt down the said William estimated his loss thereby at the sum of two hundred pounds lawfull money and actually made a claim to the committee for distributing the charitable contributions made for the sufferers by the said fire to be considered as suffering so much loss.3—That the said William sold the bricks in the ruins for six pounds lawfull money and the loft and land are worth at least the sum of one hundred and thirty three pounds six shillings and eight pence more.
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7. And now after the said mortgage recovered on by the said William in his own name hath become irredeemable, and that the fire hath consumed the said house he the said William pursueth your orator in the name of the said Christopher on the said obligation given to the said Christopher and would compell the Entire payment of the same [notwithstanding]that he hath in manner aforesaid received full satisfaction therefor contrary to equity and good conscience.
And all these things your orator is ready to prove when your honors shall appoint wherefore in as much this suit is manifestly litigious your orator prayeth that the penalty of the said obligation which your honors on the pleadings in law have adjudged to be forfeited may be chancered down to the sum of one penny and that your orator's reasonable cost may be decreed him.
[signed] Tim. Prout Attorney to Tim. Prout Esqr.
[signed] Att. Nat. Hatch Cler.
1. In an unidentified hand, signed and attested as shown in text. The paragraph numbers appear in the margin of the MS . SF 100777.
2. In the margin: “Quere.”
3. As to the fire, see note 7 above. A fund made up of sums appropriated by the General Court and donated by other provinces and private persons was given to the Selectmen and Overseers of the Poor for distribution among those who had suffered losses. See Drake, History and Antiquities of Boston 651–652.

Docno: ADMS-05-01-02-0006-0001-0003

Author: Adams, John
Date: 1766-08

Adams' Minutes of the Argument1

Suffolk Superior Court, Boston, August 1766

Prout vs. Minot.
Fitch.
2 Vernon 539. 540. Payment to Obligee, after Notice of an Assignment is not good. The Assignee alone is entituled to the Money.2
Choses in Action are assignable in Equity, 'tho not in Law.
Jones's Reps. Page 223. 223. Lewis vs. Wallis.3
Tho the Action must be in the Name of Assignor, yet it is considered in Equity and even in Law, as the Property of the assignee.
The real Interest in the present Case is in Brown.
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Gridley. Seem'd to conceed.
Judge Lynde. The Court has determin'd that if the Land mortgaged is insufficient to pay the Debt, mortgagee may have recourse to his Bond, and may sue both, i.e. Bond and Mortgage.4
1753, Bond and Mortgage was given to Minot.
1755, Bond and Mortgage of the same Land was given to Brown.
After, Brown sued his Mortgage had Judgment and enterd on Possession and
After, Minots Mortgage was assignd to Brown.5
The great Fire in March 1760, burning the House occasiond this Dispute.
1. In JA 's hand. Adams Papers, Microfilms, Reel No. 185.
2. Baldwin v. Billingsley, 2 Vern. 539, 23 Eng. Rep. 950 (Ch. 1705). Baldwin had borrowed £200 from a trust, giving the trustees a bond in that amount which recited the trust. The bond was delivered to Mrs. Billingsley, the beneficiary. Baldwin paid £100 to one of the trustees who gave him a receipt in the name of the trust, then absconded. The Lord Keeper ruled for Mrs. Billingsley, saying, id. at 540, “Mr. Baldwin ought to have been cautious how he paid the Money; it being in Equity the Money of Billingsley, as much as if the Bond had been assigned to her; and Payment to the Obligee after Notice of an Assignment is not good: In the Case of an Assignment of a Bond the Assignee alone becomes intitled to receive the Money.”
3. Lewis v. Wallis, T. Jones 222, 223, 84 Eng. Rep. 1228 (K.B. 1683), held that attachment in an action of debt did not lie against an asset assigned by the debtor to a third party.
4. That is, the earlier decision of the court on this point at the Aug. 1762 term of the Superior Court. See text and note 9 above.
5. Commas supplied in this and the preceding three paragraphs for clarity.