
    Apthorp vers. Shepard.
    
      Special Verdict.
    
    
      Indebitatus Assumpsit will not lie upon an Account which has been adjusted by the Parties, and where a Note has been given for the Balance."
    iNDEBITATUS ASSUMPSIT for Merchandise. The Cafe was: Goods were delivered in A. D. 17—. Afterwards an Abatement was made, the Account adjusted, and a Note given for the Balance; but this Action was brought upon the open Account. 
    
    
      1768.
    It was urged for the Defendant that, where there had been an Adjustment, no Action would lie upon the open Account; but Insimul Computassent was the only Action. To support which, 2 Mod. 43, 44., Millwood & Ingraham, was cited by Mr. Auchmuty.
    But it was answered, that ye same Case is in 1st Mod. 205, 206 — where there is but one Debt, an Adjustment will not destroy ye original Contract, and the same Remedy remains as before such Adjustment. And, in 12 Mod. 537, 538, May v. King, the Case of Millwood & Ingraham is denied by Holt to be Law. Also Fitzgib. 44; 1 Salk. 124; Cases in Law & Eq. (or 8 Mod.) 290; Str. 426; 1 Burrow, 9, Rhoads vs. Barnes; Ibid. 375; & Hob. 68 were cited.
    
      
       This action was brought by Apthorp, as surviving partner of the firm of Apthorp & Wheelwright, against the defendant and one Miller (not served). The special verdict found that Shepard & Miller had paid part of the account, “ besides a deduction allowed for damaged goods and overcharge,” “ that the parties settled and adjusted their accounts as above, and the appellee Shepard gave his promissory note negotiable and endorsed, and which is in the cafe for said ballance, payable on demand,” and that Apthorp & Wheelwright gave credit to Shepard & Miller therefor.
    
   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. 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.

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