I06 HARVARD LAW REVIEW. contempt. If the executor decline to admit assets in his answer, the only difference at the hearing will be that instead of a decree for immediate payment, a decree will be made that the executor render an account of the testator's estate before a Master. When this has been done, and the Master has made his report to the court, and the report stands confirmed, the cause is brought on for a further hearing, and a decree is made that the executor pay to the plaintiff the amount which has been found due to him, if the assets found to be in the executor's hands are sufficient for that purpose, — if not, then to the extent of such assets. It would be difficult to devise a course of proceeding more perfectly adapted to the exigencies of the case, more simple, more direct, or more conformable to justice, than the foregoing; and there can be no doubt that, in all these particulars, it possesses a great advantage over the corresponding course of proceeding at common law. Still, the mere fact that the remedy furnished by the common law was not as good as it might be, while it might be a sufficient reason for demanding a better one, either from the courts themselves or from the Legislature, was scarcely sufficient to justify equity in assuming jurisdiction over a purely legal right. We must, therefore, go further, and inquire whether the case is one for which the common law cannot furnish an adequate remedy; and, in doing this, we may as well go at once to the point of chief difficulty, namely, the defence of want of assets. How shall a court of common law deal with this defence? How shall it find out whether an executor has sufficient assets or not? Clearly there is but one way of doing this properly, namely, by requiring an account from the executor of the estate of his testator. Can a court of law require such an account? A court of law can, indeed, take an account after a fashion, for it formerly did do it in the action of account; but then there was special machinery provided in that action for taking an account, and the account was not taken before a jury. The action of account, however, would not lie for the recovery of a debt, nor any other action except debt or indebitatus assumpsit. Only debt and indebitatus assumpsit would lie, therefore, against an executor for the recovery of a debt due from his testator. But in neither of these actions was there any machinery for taking an account. In each of them there was but one trial, namely, by a jury. The judgment, moreover, was the next step in the action
