Boston Augst. the 18th, 1766 Sr.,

At Mr. Davis's1 request I have considered of his case with Stetson2 to be tried at your Court at which I should have been but am too much disordered to undertake the Journey. From the Circumstances communicated to me, there seems to be two points in dispute, first at what time the Attachment of the Vessels & cargo was made, & secondly if Stetson was then confined or was such an absconding Debtor as to make the attachment secure to the benefit of all the Creditors under the late Act of Bankruptcy. To the first I am of Opinion that this action must entirely rest on the Sheriffs return, even if it could be proved false. It is true the party suffering by such false return may take his Action in proper time agst. the Officer, & then the Inquiry whether false or not will properly come before the Court. It is now a standing rule in the Supr. & all other Courts where I have the honor of practising to put the partys to their Actions against Officers for false returns & never to try it under the return itself which rule is founded in Justice & Wisdem when duly considered. Another rule of practice often put into use is to suffer an officer to amend his return, which he does at his peril. If you have any Occasion to move for this last & the Court should think proper to deny it, pray that your motion be minited on the book of the Court & if that should also be denied reduce the motion into writing & desire some Gentlemen. of Character to bear it in their Minds. The second point wholly depends on Evidence and the Construction of the Act. How the inferiour Court will decide this Question I do not know, if it is suffered to be litigated now, nor do I care as an Appeal lies. But I am clearly of Opinion that Stetson's other Creditors have no right under this Suite to stir it. They not being partys & no suit now pending to try that issue. If they suppose they have a right, they must wait untill Judgmt. is given in favor of Mess. Davis's & then institute a suit to try that right. How absurd would it be For the Court under the issue this Suit to give Judgment on a collateral point affecting the interest of Strangers to the same. If they should first hear & then determine in favor of the Creditors in general, how could they finally avail themselves of such a Judgmt. or the court grant Execution to enforce it, or if on the contrary, how could such a Judgment possibly bar the Creditors from trying their right in a legal Manner, as they are not partys to this first. No Judgmt. can controul them or prevent their rights. So372that view'd in any light it must appear improper for the Court now to enter into the Enquiry. If they will not Suffer the Officer to mend his return, if necessary, after proceeding in the manner within mentioned, I submit it to your Judgment whether if would not be the safest way to let the case go to the Jury & Appeal. As you must will be best acquainted with all the Circumstances attending this point you can Judge more properly of the above hints. Without Judgment goes entirely in the plt.'s favor doubtless you will think it prudent to appeal. I should be obliged to you if you go into the Examen of either of above mentioned points or any others you would be carefull in taking down the Evidence & the principal Arguments on the same. And in such Case if possible draw out their whole strength & dependance. This is a very important Affair to your Clients, one of whom is absent, the other sick & not able to attend. Therefore do not in the least doubt your Case in the same. If any thing herein contained proves usefull I shall be glad, if any thing erroneous it must be imputed to want of time & Spirits. Your huml. Servant

ROBT. AUCHMUTY

PS: The Bearer will wait the Event of the Suit at this Court, should be glad of an Answer in full by him, how the affair goes, this at Mr. Davis's request.

RC ; addressed: "To Robert Treat Paine Esqr."; endorsed.

1.

The brothers Benjamin Davis and Edward Davis, both of Boston, merchants, assigned their powers of attorney to RTP, July 21, 1766 (RTP Papers). When Benjamin Davis (1729–1805) later refused to sign the town's non-Importation Act, the brothers' partnership was dissolved. Edward Davis (1730–1811) continued as a merchant in Boston, but Benjamin Davis left with the British troops at the evacuation of Boston in 1776. While en route for New York, he was captured and spent a year in prison in Boston, but was later released and settled as a merchant at Shelburne, Nova Scotia (Jones, Loyalists of Mass., p. 113; Publications of the Colonial Soc. of Mass., 6:124–127; Thwing Index).

2.

Ebenezer Stetson.