Page:Harvard Law Review Volume 4.djvu/139

EQUITY JURISDICTION, 1 23 ancestor, was there any sufficient reason for permitting the owner of such an obligation to sue in equity? It may be admitted at once that the reason which had, perhaps, the greatest force in the case of an executor, namely, the incompetency of a jury to take an account, had but little force in case of an heir; for as against an heir there was no account to be taken, and the question, what land an heir had by descent, was not an unfit question for a jury to deal with. There were, however, other reasons for permitting an heir to be sued in equity, which are believed to have been abundantly sufficient. First, when an heir alleged that he had not sufficient land by descent to enable him to perform an obligation imposed upon him by his ancestor, justice required that it be ascertained what land he had by descent; and yet all that the common-law courts did, or could properly do, was to ascertain whether he had any land by descent, or any more than he had ad- mitted having. Secondly, in order to ascertain how much land an heir had by descent, or whether he had any, or whether he had any more than he had admitted having, it must first appear of what land the ancestor died seised in fee simple, and that must be shown by the creditor; and yet it is a fact which the creditor would not presumably be able to show without assistance from the heir. Justice, therefore, required that the heir should state upon oath of what land his ancestor, to his knowledge, died seised in fee simple ;i and yet equity alone could compel an heir to do this, an heir not being amenable to the ecclesiastical courts, nor required to exhibit an inventory of his ancestor's lands. But, thirdly, the part of the common-law remedy which was most strikingly inade- quate was the execution. An extent is a very unsatisfactory execution at best ; for it requires the creditor to take possession of the land, and hold it (in effect) as a lessee, at a rent fixed by a sheriff's jury, until he obtains satisfaction of his judgment by re- taining the rent ; and it may be years before this object will be accomplished. As against an heir, however, the inadequacy of such an execution is still more marked. When a debtor dies, as it is then certain that the property which he leaves behind him constitutes the only means by which his debts will ever be paid, justice to his creditors requires that his property be applied at once to the payment of his debts. When, therefore, a creditor obtains a judgment which must be satisfied, if at all, out of his A See suprUf p. 1 14.