Apthorp v. Shepard

1 Super. Ct. Jud. 298

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1768
• Status: Published

Opinion

The Court

took Time to advise. Afterwards the Chief Justice delivered the Opinion of the Court (which he said was unanimous,) that this Action after Adjustment would not lie. He also informed the Bar that the Court, in forming their Opinion, had Regard to the following Cases offered by Judge Trowbridge, which were not produced by the Council on Argument: Far.

(2) 139; 1 Show. 155, 176; Mod. Cases, 36; 2 Salk. 442; 12 Mod. 86; Ld. Raym’d. 680 — and also 1 Mod. 261 — stated Accounts may be pleaded in Bar of an Action of Covenant, &c. (3)

Memorandum.

Jonathan Sewall, Esq’r., being now fixed Attorney General, we hear Nothing more at Prefent, of a Special Attorney General,, or of the novel Office of Solicitor General. (¹) Fide ante, p. 241.

a) 7 Mod.

The objection taken by Mr. Auchmuty was, that the action should have been insimul computassent on the adjusted account. But from the authorities cited by Judge Trowbridge, it would seem that he at least inclined to place the decision on the broader ground that the note given by Shepard was a payment, and extinguished the original claim against the firm. This would be in accordance with law as now established, and in opposition to the case of Pateshall v. Apthorp, ante 179, decided before Judge Trowbridge took his place on the bench.

1 (1) The next incumbent of this newly created office was Samuel Quincy, elder brother of the reporter. See post, April Term, Middlesex, 1772.