Page:Harvard Law Review Volume 4.djvu/133

117 EQ UITY JURfSDICTION. 1 1 7 It will not have escaped the observation of the attentive reader that all of the reasons which have been given for permitting the creditor of a deceased debtor to sue the executor of the latter in equity, are confined to cases in which, if the creditor sue at law, he will be met with the defence of want of assets. Ought equity, then, to have entertained a bill by a creditor who gave no reason for supposing that he would be met at law by such a defence? In answer to this question, it may be observed that it would have been impracticable for equity to entertain the inquiry whether the defence of want of assets would be set up at law or not, as in number- less cases it would have been a matter of pure conjecture. The only way, then, of limiting the jurisdiction would have been to require every creditor to sue at law first, and to permit a creditor to sue in equity only when he had been met at law with the defence of want of assets. A consequence of such a course, however, would have been that, as an action at law and a suit in equity cannot be prosecuted concurrently for the same claim, a creditor, upon suing in equity, must have discontinued his action at law,^ and that he could have done only upon payment of costs. To have limited the jurisdiction, therefore, in the manner suggested, would have imposed a heavy burden upon creditors as a condition of their suing in equity, and that, too, without any corresponding advan- tage to the estates of deceased debtors. It would also have placed in the hands of executors a powerful instrument of delay in pre- cisely those cases in which the temptation to an executor to hinder and delay the creditors of his testator is strongest. Accordingly, it became settled at an early day that the jurisdiction of equity was subject to no condition or limitation whatever.^ It is further to be observed that the reasons which have been given for the jurisdiction relate entirely to the immediate relief sought, namely, either an admission of assets or an accounting, — which the defendant had pleaded several judgments, which were upon penal bonds, and that he had no assets ultra, etc. ; whereupon the plaintiff filed a bill (in April, 1668), " to discover the truth of the plea, and debts therein set forth, and the assets." See also Bank of England v. Morice, 2 Str. 1028, Cas. /. Hardw. 219. 1 In Parker v. Dee, supra, the plaintiff was compelled to elect whether he would sue at law or in equity, and he elected to sue in equity. 2 In Pigott V. Nower, supra, Lord Nottingham said : " If a man foresee that plem administravit may be pleaded at law, and then come first into equity, as he may, why should not that avail him as much as if he had falsified such a plea ? For a man is not bound to play an aftergame, and stay till he be hurt by a plea. It is no cause of demurrer to a bill for discovery of assets, that fully administered is not yet pleaded."