Page:Harvard Law Review Volume 4.djvu/129

113 EQUITY JURISDICTION. II3 would scarcely answer his purpose, as he could only by that means compel the executor to answer categorically specific charges or interrogatories. The ecclesiastical court, indeed, required the executor to make and file in its registry a sworn inventory of the testator's personal estate ; and this, if properly done, would serve the creditor's purpose, at least down to the time when the inventory was sworn to; for the inventory would of course be evidence against the executor as an admission by him. There were two reasons, however, why a creditor should not have been satisfied with such assistance from the executor as he would obtain through the ecclesiastical court: first, it was a hardship on the creditor to have to sue the executor both in an ecclesiastical court and in a common-law court, in order to recover a debt about which there was no controversy;^ secondly, the Court of King's Bench held (strangely enough) that the ecclesiastical courts had jurisdiction only to compel an executor to file an inventory, — not to compel him to file a sufficient and proper inventory; and hence, if one of those courts attempted to do the latter, the King's Bench would grant a prohibition, on the application of the executor.'-^ The creditor, therefore, could only obtain such an inventory as the executor chose to swear to and exhibit. Such were the obstacles which a creditor was liable to encounter who sued the executor of his deceased debtor at law. Did they constitute a sufficient reason for permitting him to sue in equity? This question must be answered in the affirmative. First, justice to the creditor and to the executor alike required that an account should be taken of the assets received by the executor, unless the latter was willing to admit that he had sufficient assets to pay the plaintiff's 'debt. Even, therefore, if courts of law had never attempted to take an account in such cases, equity would have been abundantly justified in assuming jurisdiction. Secondly, although the courts of common law attempted, in the manner already explained, to convert the trial of a common-law issue into the taking of an account, yet they did not thereby render the in- 1 In Mara v. Quin, 6 T. R. i, 6, it appeared that, after issue was joined, the plain- tiff had to cite the defendant in the ecclesiastical court to exhibit an inventory, and that it took him nearly two years to accomplish that object, during which time, of course, the trial was delayed. 2 Hinton z/. Parker, 8 Mod. 168; Catchside v. Ovington, 3 Burr, 1922; Henderson V. French, 5 M. & S. 406; Griffiths v. Anthony, 5 Ad. & El. 623. That the ecclesiastical courts did not accept this view, see Telford v. Morison, 2 Addams, 319.