Page:Harvard Law Review Volume 5.djvu/134

118 1 1 8 HARVARD LA W RE VIEW. tration of the fund, and thus to require the executor to account absolutely, instead of giving him the option of admitting assets or accounting. The next question is, How could creditors be induced to share equally with other creditors the fruits of a suit prosecuted by themselves alone ? That they were so induced is clear; for bills by creditors, except on behalf of themselves and all other cred- itors, are, and have long been, very uncommon. Undoubtedly, equity might originally have made it a condition of its entertaining a suit by a creditor, that other creditors should be permitted to share in its benefits ; for equity may always dictate the terms on which it will give to the owners of legal rights the benefit of equi- table remedies. Perhaps, however, the absolute right of a creditor to sue in equity was too well established to be drawn in question before it was perceived that such a condition was desirable. Perhaps, also, the imposing of such a condition, while the jurisdic- tion was new, would have had little other effect than to discourage creditors from coming into equity. At all events, equity never imposed any such condition; 1 and at length it became too late to do so. It became necessary, therefore, to find some other means of accomplishing the same object; and other effective means were at length found. Of course the fact that one creditor of a testator sues the execu- tor of the latter, does not prevent any other creditor from suing him also; and the fact that one creditor sues him for his own ex- clusive benefit does not prevent another creditor from suing him on behalf of all the creditors. Moreover, if one creditor file a bill for his own exclusive benefit, and then another creditor file a bill on behalf of all the creditors, and the creditor in the second suit obtain a decree for an accounting before the creditor in the first suit obtains a personal decree against the executor, the proceedings in the first suit will be stayed, and the creditor in that suit will have to come in and prove his debt under the decree in the second suit; for it is a rule, the reason of which will be considered presently, that, after a decree is made under which an estate can be administered, no one who is entitled to come in under that decree will be permitted to prosecute any suit for his own exclusive benefit. Moreover, ex- ecutors were encouraged to cooperate with any creditor who sued on behalf of all the creditors, and thus enable him to obtain a 1 See infra, p. 132, n. 2.