Page:Harvard Law Review Volume 4.djvu/130

114 114 HARVARD LAW REVIEW. terference of equity unnecessary, — they only changed the ground for such interference. As equity always held that courts of com- mon law were not competent to enforce an accounting properly, even in an action expressly framed for that purpose, and in which a special tribunal was provided for taking the account after a jury had decided that an account ought to be taken, it would be a waste of time and space to argue that they were not competent to do it in a case where the form of action, the nature of the pleadings, the question to be tried, and the mode of trial, — all forbade their even attempting to do it. Thirdly, justice to the creditor impera- tively required that an executor, who refused to admit sufficient assets to pay him, should render an account of the assets received by him under oath, i.e., that he should make up and bring in an account, containing a full and minute enumeration and description of the items of charge and items of discharge, the former consist- ing of the assets received by him, the latter of the payments, etc., made by him,^ and that he should make oath to the truth and com- pleteness of such account, — in particular that it omitted nothing of the personal estate of the testator which had come to the exec- utor's knowledge; 2 and, this having been done, justice further required that the executor should answer categorically and under oath all such proper charges and interrogatories as the creditor should make and propound. All these advantages the creditor who sued in equity obtained as a matter of course, while the creditor who sued at common law could obtain such of them only as might be afforded by the inventory which the executor could be required to exhibit in the ecclesiastical court, and even that inade- quate substitute for the assistance which equity would afford to him, the creditor could obtain only at the expense 6f two suits. Such, it is conceived, are the reasons (still existing) which jus- tified equity in assuming jurisdiction over creditors' bills against executors. Another reason, however, formerly existed, which seems to have had considerable (though it is difficult to say how much) influence in establishing the jurisdiction; and, though it was a reason which has now ceased to have much force, even in England, yet it would be wrong to omit all mention of it. Debts are of three principal degrees or grades ; namely, simple contract debts, which are the lowest ; debts created by specialty, which are the next higher ; and debts created by matter of record, 1 See Vol. 3, p. 259, n. (i). a See Vol. 3, p. 241.