Page:Harvard Law Review Volume 4.djvu/127

111 EQUITY JURISDICTION. Ill from a more ancient practice, seems to be clear; for if the law had always been, in regard to the execution, as the court declared it to be in Dorchester v. Webb, the judgment would have been that the plaintiff recover his debt, to be levied immediately to the amount of the assets found in the executor's hands, and as to the remainder to be levied of assets which should afterwards come to the executor's hands; and, if a change was to be made, the judg- ment should have been first changed, and then the corresponding change in the execution would have followed as a matter of course. As it was, however, the execution was changed while the judg- ment was permitted to retain its original form ; and it remained for Lord Mansfield to make the execution conform to the judg- ment by changing the form of the latter in the manner just sug- gested.^ Since this latter change was made, therefore, whatever may be said of the judgment and execution, taken together, they have at least had the merit of consistency. This change in the execution caused an important change in the trial, and in the function of the jury; for, as soon as it was decided that the plaintiff could have immediate execution for the amount only of the assets in the executor's hands, it became necessary for the jury to inquire, and find by their verdict, how much assets was in the executor's hands; and the only way of doing this was for the jury to ascertain, first, how much assets the executor had received, or would have received if he had done his duty; then, how much he had justly and legally paid out, and how much, if any, he had lost without his fault; and the difference between these two aggregates would be the amount in the ex- ecutor's hands, either actually or in legal contemplation. This, however, is neither more nor less than taking an account, — it is the precise process which has to be gone through with in every account that is taken. The courts, therefore, in thus changing the nature of the trial, lost sight of the nature of the action, of the defendant's plea, and of the issue joined, and required the jury to do something very 1 Harrison v. Beecles, cited 3 T. R. 688, This was an action of assumpsit, to which the defendant pleaded plene admittistravit. At the trial, before Lord Mansfield, the plaintiff proved a debt of ;^8o, and the defendant was found to have assets amounting to £2^. The plaintiff's counsel insisted that he was entitled to a verdict for his whole debt. Lord Mansfield said: "The law was certainly understood to be so, and there are a hundred cases so determined. This struck me as absurd and wrong." Accordingly, the plaintiff had a verdict and judgment for £2^s and a judgment of assets qtiando acciderint for the residue of his debt.