Page:Harvard Law Review Volume 4.djvu/125

109 EQUITY JURISDICTION, • 109 for an executor, who must be supposed to know the facts, to plead falsely. Unless, therefore, it is very clear that he can show a total want of assets, it will stand him in hand to consider whether he will not adopt the third mode of pleading, in which case the plaintiff may admit the plea to be true, and take judgment for his debt, to be levied immediately to the extent of the assets ad- mitted, the remainder to be levied of assets which shall afterwards come to the executor's hands {qiiando acciderint'^'), or the plaintiff may traverse the plea ; and in that case the whole action will turn upon the question whether the executor has any more assets than he has admitted. Formerly, however, it often happened, in Eng- land, that an executor, who was sued by a creditor of his testator, had assets in his hands, but they were all applicable to the payment of debts of a higher degree than the plaintiff's, and which were, therefore, entitled to be paid before the plaintiff's; and in that case the executor adopted the second mode of pleading; and he was then required to specify in detail all the debts of a higher nature than the plaintiff's, for the payment of which he claimed that the assets in his hands were bound. When the executor's plea took this shape, the creditor could either traverse the allegation that the executor had no assets beyond the amount of preferred debts set out in the plea, or he could traverse the existence of the preferred debts, or of a sufficient portion of them to bring the re- mainder within the limits of the assets admitted by the executor. In short, the creditor could either deny that the assets amounted to so little, or that the preferred debts amounted to so much, as the executor claimed.^ Such, it is conceived, is the true theory of the common-law defence of want of assets, pleaded by an executor to an action brought against him by a creditor of the testator; and there is believed to be no room for doubt that, in early times, theory and practice were in this respect in entire harmony with each other.^ There was, however, long since a departure from principle in one particular which introduced a great change in practice. Thus, as early as the time of James L, in a case reported by Lord Coke,* where the debt sought to be recovered was ;^200, and issue 1 See Noell v. Nelson, 2 Wms. Saund. 214. 2 See Hancocke v. Prowd, i Wms. Saund. 328, with Serjeant Williams's notes. 8 See infra^ pp. 120-1.
 * Mary Shipley's Case, 8 Rep. 134 a.