Page:Harvard Law Review Volume 5.djvu/146

130 130 HARVARD LAW REVIEW. creditors and legatees who come in under the decree are construc- tive plaintiffs in the suit; and yet those who come in under the decree in such a suit stand in the same relation to the suit as those who come in under the decree in a suit by a creditor or pecuniary legatee. The only difference that exists is in the reason for their being let in. In the one case they are let in because the letting of them in is a sine qua non of the plaintiff's obtaining the relief which he seeks, while, in the other case, they are let in because the plaintiff voluntarily consents to their being let in. Fourthly, the creditors or pecuniary legatees of a testator do not constitute a class of persons in such a sense that they can all be made co- plaintiffs in a suit, either constructively or nominally. That they cannot all unite as nominal plaintiffs is clear; for not only has each of them, presumably, a separate and distinct right, but the right of each, presumably, depends upon a wholly separate and distinct case. Indeed, if any two creditors or pecuniary legatees of the same testator (not being joint creditors or legatees) should unite in filing a bill for the recovery of their respective debts or legacies, their bill would be bad for multifariousness. And yet the sure mode of testing the question, whether a given class of persons can be made constructively co-plaintiffs (one of their number being the nominal plaintiff), is to inquire whether they could all unite as nominal co-plaintiffs ; for there is but one reason for permitting persons to be made constructive parties to a suit, namely, that they are so numerous that it is inconvenient to make them all nominal parties. But even if all pecuniary legatees, and all creditors whose debts are of the same degree, constitute each a class, for the purposes of the question now under consideration, it will not follow that all creditors, whatever their degree, also constitute a class. A creditor by judgment or by specialty differs as much, for the purposes of the present question, from a creditor by simple con- tract as the latter does from a pecuniary legatee ; and yet no one will claim that creditors and pecuniary legatees can be made co- plaintiffs, either constructively or nominally. To claim, therefore, that all the persons on whose behalf a suit is brought by a cred- itor or a pecuniary legatee are constructive co-plaintiffs is to claim that the practice which has always prevailed is erroneous ; for it has always been the practice for creditors to file their bills on behalf of themselves and all other creditors, of whatever