A website from the Massachusetts Historical Society; founded 1791.
close

Browsing: Legal Papers of John Adams, Volume 1


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.
{ 242 }
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.

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

Editorial Note

This case and Nos. 18–21 18–19 and 20–21 reflect some of the legal problems arising from the dependence of the New England economy on running water as a source of industrial power. They fall into two categories: defendant either blocked a running stream entirely or so diverted the flow as to diminish the amount available to plaintiff; or defendant caused the stream to overflow plaintiff's land. Plaintiffs in both sorts of cases had first to prove a right to the water, the land, or, sometimes, both. Some of the Adams minutes are thus largely concerned with chain-of-title evidence. And, as in most provincial litigation, technical points of pleading were usually never far from the surface.
Like Wilkins v. Fuller, No. 20, the instant litigation arose from the flooding of plaintiff's meadow by back water from defendant's dam, this one being across Pudding Brook in Pembroke. Here, however, there was no pleading issue to delay the proceedings. The action was entered at the Plymouth Inferior Court in March 1768,1 and was continued to July 1768 where, after a jury view of the land in question, Adams won a “Verdict for Defts.” with costs, and a fee of 28s.2 We have no Adams minutes of the Inferior Court trial, but Robert Treat Paine's notes include { 243 } the former's argument (Document I). Adams' own minutes (Document II) date from the Plymouth Superior Court, May 1769, where once again his clients won.3
1. The writ is endorsed “Otis,” SF 142297, although Paine seems to have tried the action. A note on JA 's list of cases for this term reads: “I have promised to be for Defts. Reed. 12s, Reed. 22s. Continued.” JA , Docket, Adams Papers. Counsel of record in the SCJ were Paine and Otis for plaintiff, JA and Leonard for defendant. Min. Bk. 82, SCJ Plymouth, May 1769, N–2. See also Clark v. McCarney, p. 68 above.
2. JA , Docket, Adams Papers.
3. SF 142297; Min. Bk. 82, SCJ Plymouth, May 1769, N–2; SCJ Rec. 1769, fol. 183. Costs were £13 8s. 10d.