. In an unidentified hand, presumably that of one of
's clerks. Pleadings Book, p. [36–37]
. The writ, dated 29 Aug. 1772, was probably drawn by
, who was of counsel for Thomas Loring at the Plymouth Inferior Court, Oct. 1772,
where judgment was entered for Mary Loring on a demurrer to the plea. At Plymouth
Superior Court in May 1773, with
still appearing for Thomas, the case was referred. At the Taunton term in Oct. 1773
the report was read, the referees awarding Thomas his debt of £240 and costs. Robert
Treat Paine represented Mary in both courts. Min. Bk. 94, SCJ
Plymouth, May 1773, N–5; SF
142520. (No record reference has been located.) As to the iron industry in Massachusetts,
see Nos. 18–19, notes 4
. The size of the recovery was probably a result of the six-year statute of limitations
on “all actions of debt grounded upon any lending or contract, without specialty.”
Act of 20 Nov. 1770, c. 9, §2, 5 A&R
The action of debt for a legacy stems from a quasi-contractual feature of the action
which permitted recovery where one party was under a noncontractual duty to pay money
to the other. See Fifoot, History and Sources
222–223; 1 Chitty, Pleading
91, 102; Shipman, Common-law Pleading
134. In England a pecuniary legacy was ordinarily sued for either in chancery or
in the ecclesiastical courts. Lord Mansfield's decisions that indebitatus assumpsit
lay, because a promise could be implied from the duty to pay imposed upon the executor
who had received assets, were rejected toward the end of the 18th century, on the
ground that the courts of law could not adequately enforce the wishes of the testator.
See Atkins v. Hill, 1 Cowp.
284, 98 Eng. Rep.
1775); Hawkes v. Saunders, 1 Cowp.
289, 98 Eng. Rep.
1782); Deeks v. Strutt, 5 T.R.
690, 101 Eng. Rep.
1794). See also Alison Reppy and Leslie J. Tompkins, Historical and Statutory Background of the Law of Wills
145–150 (Chicago, 1928); Fifoot, History and Sources
408–410, 435 note. In Massachusetts, where there were neither chancery nor ecclesiastical
courts, a statute provided that all “certain” legacies might be sued for at common
law. Act of 14 July 1693, c. 8, §2, 1 A&R
122. The actions of debt and assumpsit were thus at least partially concurrent remedies
of the legatee. Assumpsit seems to have been more commonly used because of the doctrine
that debt lay only for a sum certain, which had to be proved exactly. Debt was a proper
remedy, however, where, as in this case, the legacy was in the form of an annuity
and only arrears were sought, the right to the annuity having ceased at the legatee's
death. See 2 Dane, Abridgement
239; 5 id.
at 103–104, 119–124, 238–239; 1 Chitty, Pleading
107–108; Perham, American Precedents