1760. Oct. 11th.
Neals Action is entered so that I have two Actions to defend by Pleas in Bar and three of the Actions I entered, are to be defended, Clark is to Plead in Abatement and Tirrell and Thayer are, I suppose, to plead to issue. Clark gave a Note of Hand to Captn. Brackett in his Life time, and after his Death, on a Reckoning with the Administratrix, a Ballance was found due to the Estate upon Book, for which he gave a new Note to the Widow as Administratrix. Now I have laid both these Notes in one Declaration in Conformity to the Province Law, which forbids two Bills of Cost, upon Instruments, Bonds, Bills, Notes &c. executed by the same Party, and made payable to one and the same Person, and put in suit at the same Time. Dana pleads in Abatement, that these Notes, tho executed by the same Party, were not made payable to one and the same Person. The first was made payable to Bracket, and the second was made payable to his Wife—and cites 3rd. Salkeld 202. “A. owed to B. £20 as Executor, and £10 more in his own Right. One Action will not lie against him for the whole Money, because there must be several Judgments.” And Dana says, that soon after he began Practice, he drew a Writ upon a Note taken by an Executor, as Executor, for a Debt of his Testator, and drew the Writ as if the Note had been taken in the Executors own private Right. Auchmuty1 for the Defendant, pleaded in Abatement that the Note was given to Plaintiff as Executor, not in his own Right, and the Inferiour Court abated the Writ, but he appealed, and at the Superiour Court, got Mr. Reed to speak for him, who contended that the Words as Executor, were idle, and the Court unanimously set up his Writ.
1. Robert Auchmuty the elder (d. 1750 or 1751), a Scot trained at the Middle Temple who was prominent in the early Boston bar and other colonial affairs; from 1733 to 1741 he was judge of admiralty for New England. His son Robert was an associate of JA’s in the Suffolk bar, notably as co-counsel in the defense of Captain Preston in 1770, but he became a loyalist and left America. A sister of the younger Auchmuty, Isabella, married the lawyer and judge Benjamin Prat. (DAB description begins Allen Johnson and Dumas Malone, eds., Dictionary of American Biography, New York, 1928–1936; 20 vols. plus index and supplements. description ends , under both Auchmutys; NEHGR description begins New England Historical and Genealogical Register. description ends , 12 :69–71.)