Page:Harvard Law Review Volume 5.djvu/145

129 EQUITY JURISDICTION. 129 to be settled by the Master." 1 So when the decree, in a suit either by a creditor or by a pecuniary legatee, directs that all the parties to the suit shall have their costs, to be paid out of the estate, only the nominal parties are included. 2 So too the final decree in a creditor's suit, while it provides for the payment of all creditors who have come in before the Master and established their claims, never speaks of them as parties to the suit, but refers to them as persons named as creditors in the schedule to the Mas- ter's report. 3 Secondly, none but the nominal plaintiff or plain- tiffs are plaintiffs in fact. Until after the first decree is made, none but the nominal plaintiff or plaintiffs have anything to do with the suit, nor are in any manner affected by it; and those who do not choose to come in under the decree, forever remain total strangers to the suit; and yet every one who is constructively a plaintiff in a suit is so from the beginning, and is interested in and bound by everything that is done in it, and he may, therefore, apply to the court for leave to take part in its prosecution. Even those who come in under the decree in a suit by a creditor or legatee do not thereby become, constructively or otherwise, plaintiffs in the suit. It is true that, if their claims are investigated and rejected, they will be bound by the decision, 4 but that is because their claims have been tried ; and though the trial may have been informal, yet it was had on their own application. Moreover, it is not the decree in the cause, but the Master's report and the confirmation of it by the court, that binds them. That those who come in under the decree are not represented by the nominal plaintiff or plaintiffs, appears also from the fact that, so far as they are repre- sented in the suit at all, they severally represent themselves. So far are they, indeed, from being represented by the plaintiff, that they may contest the plaintiff's claim (as they may the claims of each other) in the Master's office. Thirdly, there is no necessity that all those on whose behalf the suit is brought should be con- structive plaintiffs in the suit. When the suit is by a residuary legatee or next of kin, it will not be seriously claimed that the 1 Seton on Decrees (1st ed.), p. 51. 2 Creditors who come in under an administration decree do not even receive the costs of proving their debts. Abell v. Screech, 10 Ves. 355 ; Harvey v. Harvey, 6 Madd. 91 ; Waite v. Waite, 6 Madd. no. 8 Seton on Decrees (1st ed), p. 58. 4 See Neve v. Weston, 3 Atk. 557; Teed v. Beere, 28 L. J., Chan., 782; Barker v. Rogers, 7 Hare, 19; Thomas v. Griffith, 2 De G., F. & J. 555.