
    Charles G. Dahlgren, Administrator de bonis non of Joseph Neibert, deceased, vs. Stephen Duncan, et al.
    Under the statute of this state, which provides that whe.n a person dies insolvent, his estate, “ both real and personal, shall be distributed to and among all the creditors, in proportion to the sums to them respectively due and owing;” taken in connection with the statute that makes “all promises, contracts and liabilities of copartners joint and several,” the debts due by a deceased person individually and as a partner, will stand on exactly the same footing and be entitled to equal satisfaction out of the insolvent’s estate. Mr. C. J. Shaekey dissenting.'
    In such case, if the creditor of the partnership have sued the surviving partners, and procured payment of any portion of the debt, the estate of the deceased will be entitled to the benefit of it; if the creditor looks only to the'estate of the deceased, and that pays more than its proportion, the representatives of the estate will stand in the place of the creditor and substituted to his rights with reference to the other partners.
    After the report of the commissioners of insolvency has been received and allowed, the probate court cannot at a subsequent term open it for any cause, unless the former orders were null and void.
    The case of Robins v. Norcum, 4 S. & M. 332, declaring the want of jurisdiction of the probate court of a petition by a creditor of an estate, after the report of the commissioner of insolvency is allowed, to settle conflicting rights between creditors, cited and confirmed.
    On appeal from the probate court of Adams county; Hon. Thomas Fletcher, judge.
    Charles G. Dahlgren, as administrator de bonis non of Joseph Neibert, deceased, represented his intestate’s estate to be insolvent to the probate court of Adams county, in which his letter of administration had been granted.
    Commissioners were duly.appointed to audit and allow claims against the estate of the deceased, which claims, as allowed and reported to the court, amounted, in the whole, to the sum of $876,094^, of which $449,070 were the individual or separate liabilities of Neibert, 247,0851¶0 his liabilities as a copartner in his lifetime of the firm of Neibert & Gemmell; and ^196,959^ as a copartner of the copartnership of Neibert, Gemmell & Co.
    The report of the commissioners was confirmed b.y the probate court for the whole amount, without objection. •
    Stephen Duncan, at a subsequent term of the court, filed his petition for a dividend of the moneys in the hands of the administrator, among the separate creditors, to the exclusion of the creditors whose claims arose through the partnership.
    The answer of the administrator sets forth the amount of money in his hands, and the facts as to the claims allowed, the report of the commissioners and its confirmation, and prays that other creditors might be made parties to the proceedings, so as to contest their respective claims to the fund; and submitted the whole matter to the decision of the court.
    An amended and supplemental petition was filed by Duncan, making a number of the creditors parties, &c. It is not deemed necessary to notice the pleadings at greater length.
    Answers were put in by a number of the creditors, separate and copartnership, the latter claiming a pro rata dividend on their claims allowed by the commissioners and confirmed by the court, jn the same manner as the claims of the separate creditors.
    H. S. Eustis, one of the parties, demurred to the petition, and raised the question of the jurisdiction of the court.
    The administrator, Dahlgren, demurs to the amended petition, also to have the question of jurisdiction determined.
    These demurrers were overruled by the court.
    There is an agreed statement of facts signed by counsel, forming a part of the record, which shows (besides what has been recited) the names of the copartners of Neibert & Gem-mell, and Neibert, Gemmell & Co.; that the partners survived Neibert, but are now dead, and their estates insolvent, and that no dividend had ever been declared on their estates; also the rates of depreciation of the notes of the banks, who are creditors of Neibert.
    It is not deemed requisite to set it put more fully,
    
      The probate court rendered its decree, and adjudged that the separate creditors were entitled to the separate estate of Neibert in the first instance, and that the copartnership creditors should be postponed till the separate creditors should be paid in full, if there should be a fund sufficient. .The court accordingly declared a dividend of four per cent, in favor of the separate creditors.
    An agreement by counsel is in the record, that either party to the record could avail himself in this court of any errors committed by the court of probate in the case, on this appeal, which has been prosecuted by Dahlgren, administrator, that the questions involved in the case might be settled.
    
      Eustis, for appellant, and the creditors of the partnership.
    The question of jurisdiction, raised in this record, has been lately settled in the case of the Commercial and Railroad Bank of Vicksburg v. Mercein and Bennett, which shows that after the report of the commissioners of insolvency is confirmed, the probate court has no jurisdiction over a petition by creditors which seeks to settle conflicting rights between creditors. As counsel for the partnership creditors, we wish the merits of the decree of the judge of probate could be examined. He has followed (except upon the question of jurisdiction) the opinion of the chancellor in Pinckard Sf Arnold v. Hamer, Freem. R. 517.
    
    We think this opinion will not bear examination. First, we admit, that partnership creditors have a prior right in equity over private creditors, against partnership effects. The reason of this is, that by the partnership the partnership property is, as between the partners, specifically pledged for the payment of the partnership debts. But is the converse true? Can it be said that in equity there is between the partners a specific pledge of the private property of each, for his private debts ? Does not a party, contracting with a partnership, look as well to the private wealth of the partners as to the extent of the partnership investment? Does not the statute say, that the joint contract is joint and several? We admit, farther, that the rule is fixed in the English bankrupt courts; the private estate goes to the private creditors, the partnership estate to the partnership, creditors. But English judges admit that the rule was adopted arbitrarily, and some of them deny its foundation in equity. What does Chancellor Buckner, in the case cited, give as his reason for the rule'? He says: “Upon the death of one partner, the claim of joint creditors survives against the surviving partner, and is extinguished at law against the estate of the deceased partner, to which they can only resort through the aid of a court of equity, where the advantage thus thrown by accident upon the separate creditors, will be preserved. The separate creditors having acquired 'priority at laio, and having equal equity, that priority must be preserved.” Freem. R. 516.
    But for this accident of priority at law, the chancellor admits that the equities of the different classes of creditors would be equal. Now the fact is, no such accident exists; there is no such priority at law. The chancellor, and the counsel who argued that case, as appears from the briefs, all overlooked a statute, which was apparently made for the precise state of fact, which prevents the claim of the joint creditor being extinguished at law against the estate of the deceased partner. We refer to How. & Hutch. 578, sec. 8.
    In case of the death of one or more joint obligor or obligors, the joint debt or contract shall and may survive against the heirs, executors, and administrators of the deceased obligor or obligors, as well as against the survivor or survivors; and a recent decision of this court, authorizes the reviving against thfe administrator, and proceeding to judgment against him in the same suit with the co-obligors. Where, then, is the priority at law upon which the chancellor based his decision 1 By an arbitrary rule in England, and in some of the United States, where there is no such statute as the foregoing, a party trusting two persons, may find himself worse off than if he had trusted but one of them. No case that we have seen has satisfied us of the equity of such a result; and all our legislation upon joint contracts exhibits a different view of the question in this state.
    .Counsel for appellees admitted, on argument, that the commissioners’ report could not be opened for the purpose of sealing 
      their claims, but insist that it can for the purpose of securing to them a larger dividend. We take it, the purpose will not be the criterion of the power.
    
      Quitman and McMurran, for appellant.
    Two questions arise in this case. Whether the probate court had jurisdiction 1 And if it had, whether it decided correctly in decreeing a dividend to the separate creditors, to the exclusion of the other creditors %
    
    We state the points, and will remark very briefly on them, as we appear for the administrator, who is perfectly indifferent as to the result, but who has prosecuted this appeal under our advice, that he might be enabled to discharge his duties with safety to himself, and to the satisfaction of all interested in the estate of Niebert.
    1. As to the question of jurisdiction. Finding a decision of the late chancellor on the subject, we have considered the question worthy of the serious consideration of this court. In the
    • case of Arnold & Pinchará v. Hamer et al. Chancellor Buckner has determined, that the marshalling of the assets of an insolvent •estate between separate and copartnership creditors, belongs peculiarly to the court of chancery, and that the probate court is inadequate to the adjustment of the conflicting rights among these creditors. He considers that it is only through a court of •equity that the separate creditor is entitled to a priority. 1 Freem. R. 509, 516, 518.
    2. In the same opinion, just referred to, the chancellor is • clearly of opinion, that the separate creditor is to be preferred as to the separate estate; but that if the commissioners of insolvency have reported on the claims, and that report been confirmed in favor of the joint as well as the separate creditors, the probate court cannot look behind 'the confirmation of the report, and distinguish between the separate and copartnership creditors. The statute is quite peremptory and definite. How. & Hutch. Dig. 4Ó9, 410, sec. 80.
    We think the weight of authority is in favor of the separate .creditor being entitled to the separate fund in the first place, and the copartnership creditors to the copartnership estate. But there are respectable authorities to the contrary. Bell’s Executor v. Newman, 5 Serg. & Rawle, 78; 1 Ashm. R. 347, Spring’s estate.
    The question of jurisdiction in favor of the probate court is, to our minds, greatly increased by the commissioners' having reported on the claims of the copartnership, as well as separate creditors, and that report confirmed. Whether that court can now inquire into, and distinguish the classes of creditors, and declare a dividend in favor of the one class, and exclude the other 1
    
    We submit the whole subject to the consideration of the court, only asking, that the questions raised in this case may be fully determined by this court.
    
      Montgomery and Boyd, for appellees.
    There are but two points in this case.
    1. As to the distribution of the estate of an insolvent’s estate among creditors. The creditors are of two classes. Individual and partnership. The whole question-, with all the authorities which it is considered important to produce, will be found fully presented in the written opinion of Judge Fletcher, herewith presented.
    2. Has the probate court the right to prescribe the funds in which the administrator shall pay any particular creditor, or to reduce the claim of a creditor reported by the commissioner. We consider the first branch of this question as to the power of the court to direct the administrator to pay the creditors in anything but money, fully settled in the case of Robins et al. v. Nor cum et al. 4 S. & M. 332.
    The other question, as to the power of the court to interfere with the report of the commissioners of insolvency, has been so often decided that it has become familiar, and no reference to the cases is necessary.
    The following is the opinion of Judge Fletcher, delivered in the court below and referred to in the foregoing argument of Messrs. Montgomery and Boyd, viz.:
    This is a petition of Stephen Duncan, a creditor of the estate of Joseph Neibert, praying an order of distribution of the funds now in the hands of Charles G. Dahlgren, administrator de bonis non of Joseph Neibert, among his separate creditors, postponing until they are fully paid, the creditors of Niebert & Gemmell, Neibert, Gemmell & Co., of which firms, Joseph Neibert was a partner, and whose claims were regularly proved before commissioners of insolvency, and their report confirmed by this court, at September term, 1842. The estate of Neibert being declared insolvent, the report of commissioners contains a classification of his liabilities, separately, and as a member of said firms. The total amount of claims allowed against the estate of Neibert, as exhibited by the report of the commissioners, was $876,094 55; of which sum, there was due his individual creditors, $439,602 83. Peter Gemmell was the surviving partner of the firms of Neibert & Gemmell and Neibert, Gemmell & Co. Upon the death of Gemmell, letters of administration were granted on his estate to Samuel T. McAlister and Ann P. Gemmell, who took possession of all the rights and credits of both partnerships. It appears, from their inventory, that they received from the proceeds of partnership property, the sum of $10,947.
    The report of the commissioners shows the Planters Bank and others of Mississippi, are creditors of Neibert’s estate ; and that on some claims, allowed by the commissioners, partial payments were made by former administrators of his estate.
    The answer of Dahlgren admits that he has funds belonging to the estate of Joseph Neibert, amounting to the sum of $18,033 67, and that he has not participated in any administration of the effects of either of said partnerships, of which Nei-bert was a member. It appears, from the answer of James C. IWilkins, that, as surety of Neibert, he has paid a large amount of the claims proved before the commissioners of insolvency, by the Commercial Bank of Manchester and other banks of this state.
    
      The chief question, arising on the petition and answers, is as to the mode of distribution to be adopted by the court. It is one of novelty as regards the action of the probate court, and of much interest to the different classes of creditors whose claims have been proved before the commissioners of insolvency, and their report confirmed by this court. The principle contended for by the petitioner, had its origin in the distribution of the effects of bankrupts, and has been applied in the distribution of the assets of decedents, both in this country and in England. The history of the rule is exceedingly interesting, but it is not essential that it should be detailed. It was established as early as 1715,- and maintained for a period of sixty years, until the administration of Lord Thurlow; reestablished with modifications in 1796, and generally adhered to at the present day.
    The rule, as fully stated by Chancellor Kent, in his learned Commentaries, (vol. 3, p. 65,) is, that partnership debts must be paid out of the partnership estate, and private and separate debts out of the private and separate estate of the individual partner. If the partnership creditors cannot obtain payment out of the partnership estate, they cannot in equity resort to the private and separate estate, until private and separate creditors are satisfied; nor have the creditors of the individual partners any claim upon the partnership property until all the partnership creditors are satisfied.
    Mr. Justice Story, in his elaborate and profound treatise on partnership, (p. 530,) represents the rule to be firmly estab-' lished, but suggests that it is founded more upon authority, than in the principles of natural justice. He states it to be a general rule, in bankruptcy, that the joint debts are primarily payable out of the joints effects, and are entitled to a preference over the separate debts of the bankrupt; and so in the' converse case, the separate debts are primarily payable out of the separate effects, and possess a like preference ; and the surplus only, after satisfying such priorities, can be reached by the other class of debts. Notwithstanding his doubts of the justice of the rule, which he considers resting on a foundation as ques-tiotiable and unsatisfactory as any rule in the whole system of our jurisprudence, yet he concludes, for the public repose, it should be left undisturbed, as it may not be easy to substitute any other rule, which would uniformly work with perfect equality and equity in the mass of intricate transactions connected with commercial operations. Story on Partnership, 541.
    The rule is stated with equal clearness by Gow, in his work on Partnership, (p. 308,) to be, that where there are different sets of creditors, each estate shall be applied exclusively, in the first instance, to the payment of its own creditors, the jqintestate to the joint creditors, the separate to the separate; and that neither the joint creditors shall come upon the separate estate, nor the separate upon the joint, but only upon the surplus of each that shall remain after each has fully satisfied its own creditors respectively.
    The case of McCulloh v. Dashiell’s Administrator. (1 Harris &> Gill’s R. 96,) is a strong case in point, and fully sustains the authorities referred to. Peter Dashiell and Richard Bennett were partners in trade, dealing in merchandise, under the firm of Dashiell & Bennett. A bill of exchange was drawn by Chase and Tilyard on said firm, in favor of McCulloh, and accepted by them. Suit was subsequently brought against the firm, on their acceptance, and, pending the action, Dashiell died intestate. Judgment 'was recovered against Bennett, the surviving partner, who afterwards obtained the benefit of the act for the relief of insolvent debtors. No part of the judgment had been paid at the time of his discharge. Letters of administration had been granted to Parsons upon the estate of Dashiell, who had a large amount of assets in his hands, (together with an inconsiderable sum of the partnership funds,) yet his personal estate was insufficient to pay his separate and private debts. Upon the application of McCulloh to the Somerset county court, sitting as a court of equity, to be paid an equal proportion of his claim out of the assets in the hands of Parsons, with the separate creditors of Dashiell, it was refused by the county court, and, on appeal, its decision sustained in the court of appeals of Maryland. In a luminous review of the leading cases in bankruptcy, displaying much research and ability, Mr. Justice Archer, in delivering the opinion of the court, adhered to the rule, for the very forcible reason, that the joint estate is benefited to the extent of every credit which is given to the firm,'and so is the separate estate in the same manner enlarged by the debts it may create with any individual, and there would be unquestionably a clear equity in confining the creditors to each estate respectively, which has thus been benefited by their transactions. The court adopted the ancient rule, as consonant with equity and justice, (even when the administrator had funds of the firm in his hands,) that the joint creditors can only look to the surplus after the payment of the separate debts; and, on the other hand, that the separate creditors can only seek indemnity from the surplus of the joint fund after the satisfaction of the joint creditors.
    Our own able and energetic chancellor, by a similar train of reasoning, no less cogent, considers the law well settled upon: principles of equal justice and solid reason, that on the death of. one of several partners, a joint creditor has no claim for the payment of his debt out of the separate estate of the deceased partner, until the claims of the separate creditors have been first satisfied. Arnold & Pinckard v. Hamer et al. Freem. Ch. R. 509, and ¡S. TV. Oakey & Co. v. Rabb’s Executors, Ibid. 546.
    The main reasons assigned for the rule in equity are, that each estate ought to bear its own debts; that in contracting with the individual member of a copartnership, we rely upon his sufficiency; but in dealing with the firm, the credit is supposed to be given to the partnership. The funds on which the credit was given are to be liable. The joint creditors having increased the joint fund, and those who make advances on the separate credit having created the separate fund, natural justice requires that the funds, so constituted shall be applied to the respective demands. In dealing with a firm, we view it as a unit, and as such hold it responsible, without regarding the sufficiency of each member of the partnership. For general reference to American authorities, see 5 Johns. Ch. R. 60; 3 Paige’s Ch. R. 169, 517; 6 Ibid. 19; 22 Pick- R. 454; 2 McCord’s Ch. R. 302; 1 Nott & McCord’s R: 557; 2 Dessaus-sure’s R. 270, and 1 Story’s Equity, 625.
    The rule is just and reasonable — not founded alone upon convenience or authority, but in equity; to be revered for its purity and antiquity, and being thus firmly established by a series of decisions of the ablest jurists of the country, this court, in exercising its equity powers, is bound to conform to them, unless inconsistent with some statutory provision, peculiar to our code of laws.
    There is nothing in the eightieth section of our proba*te laws, (How. & Hutch. 409, 410,) which prescribes the course of proceeding when an estate is insolvent, that is inconsistent with this rule. The proposed mode of distribution is not expressly forbid, or by implication; nor can it be inferred, from any clause in this section, that the legislature intended to change a rule that had been established and maintained more than a century. The spirit of the law harmonizes with the rule, and while the statute accomplishes the purpose for which it was designed, does not conflict with the equitable principle. It has reference to the payment and distribution, in the first place, of a “ single fund among its own peculiar creditors.” It would be a forced construction of the statute, in distributing the assets of an insolvent estate, to include under the terms “ creditor,” joint creditors, “debts,” joint debts, or “estate,” joint estate. Viewing the object, reason, and spirit of that section, it cannot embrace partnerships. It can only embrace, in the first instance, “the debts which the deceased owed,” and not the liabilities of the different firms of which he was a member. On the dissolution of a partnership by the death of one of the partners, the surviving partner is entitled to the possession of the effects of the partnership, and settles the affairs of the firm. Neither the representative of the deceased partner, nor this court, can exercise any control over such funds. The creditor of the firm, it is true, ■ may, by statutory regulation, pursue such representative, as well.as the surviving partner; but when the estate of the decedent is represented to be insolvent, he can only claim a 
      pro rata dividend out of the surplus of the separate estate of the deceased partner, after paying the amounts “due and owing” the separate creditors. Any other construction of the statute would be abhorrent to equity, and work gross injustice to the separate creditors of Neibert’s estate. Chancellor Buckner, in the case of Arnold & Pinchará v. Hamer et al. expresses the opinion, that “ this statute does not, in any way, interfere with or change the legal rights of separate and partnership creditors.” The act of 1836, (How. & Hutch. 595,) making the promises, contracts, and liabilities of copartners, joint and several, and of 1822, (Rev. Code, chap. 13, sec. 25,) providing that in case of the death of one or more obligor or obligors, the joint debt or contract shall and may survive against the heirs, &c. of the deceased obligor or obligors, as well as against the survivor or survivors, &c. have not in any respect altered or modified this rule in equity. They have reference solely to the remedy against parties, and do not affect the rights or priorities of joint and separate creditors.
    But it is strongly urged, as the claims of the partnership creditors have been regularly proved before the commissioners of insolvency, and their report confirmed, this court is precluded from further adjudication. It is true, the report of the commissioners contains a classification of the different creditors, but the examination, and order of confirmation of that report is not conclusive as regards the equities or priorities of those creditors. It is only conclusive as to the amount of the claims of the various creditors. The order of confirmation, and a decree of distribution are separate and distinct. This court cannot now open the commission, except upon the ground of fraud, but in ordering a distribution of the assets in the hands of the administrator among the separate creditors of the estate, what interlocutory order or decree of the court will be disturbed ? There has been no decree that will be reversed or vacated by the present judgment of the court; and no right impaired that may be conferred upon any creditor by the statute. It was very prudent for the partnership creditors to have proved their claims. Without this precaution, upon the contingency of there being a sur-pins after the satisfaction of the separate creditors, they could not demand it, as their claims would be barred, — unless they could “ find other estate not inventoried or accounted for by the administrator before distribution.”
    It is worthy of remark, that in Massachusetts, by an act passed-in 1838, for the relief of insolvent debtors, the rule adopted for the distribution of the effects of such debtor, is that the net proceeds of the joint property should be appropriated to pay the joint creditors, and the net proceeds of the separate estate of each partner should be appropriated to pay his separate debts.
    The probate court having exclusive jurisdiction over all'matters confided to it by the constitution, with powers as ample as a court of chancery, so far as that jurisdiction extends, and being its peculiar and exclusive province to order the distribution of the assets of an insolvent estate, I shall therefore, appoint an auditor to report the amount due the separate creditors of Joseph Neibert,-and decree distribution of the funds now in the hands of his administrator, among that class of creditors, postponing the creditors of Neibert & Gemmell, and Neibert, Gemmell & Co. until they are fully satisfied.
    According to the above opinion of the court, it was ordered, adjudged, and decreed, that the funds in the hands of said Dahlgren, administrator as aforesaid, being the separate estate of Joseph Neibert, are properly liable in the first place for the payment of the claims of the separate creditors of said Neibert, and that the claims against the partnerships of Neibert & Gem-mell and Neibert, Gemmell & Co. be postponed until the separate creditors of said Neibert be fully paid and satisfied. And when payments have been made by former administrators of said Neibert on claims, the administrator shall not pay any dividend on such claims, until the dividend now, or hereafter to be declared, equal the sum paid on such claims ; that on all claims due the banks of this state, he shall pay them their dividends in their respective notes, at par; and when notes discounted by said banks for said Neibert, have been allowed by the commissioners of insolvency, and paid by the surety of Neibert, he shall pay the surety his dividend according to the par value of the funds in which the notes were paid, at the time of payment, to be ascertained and estimated by the court. It was further adjudged and decreed, that the said Charles G. Dahl-gren, administrator as aforesaid, do pay to the separate creditors of the said Neibert, according to the report of R. North, auditor, the sum of four per cent, on each dollar.
   Mr. Justice ClaytoN

delivered the opinion of the court.

The estate of Joseph Neibert was reported as insolvent, by the administrator, to the probate court of Adams county. The commissioners appointed to audit the claims against the estate, made their report to the September term, 1842, of the court. By this report, claims against Joseph Neibert individually were allowed to the amount of $449,070, and against him as a partner in two insolvent firms, to the amount of $247,085. This report was confirmed.

At the December term, 1843, of the court, Stephen Duncan filed his petition, setting forth that there had been allowed him in the report of the commissioners, as a creditor of Neibert individually, a claim to the amount of $3000 ; and that there was a great deficiency of assets to pay all the claims. He therefore prayed that the individual estate of Neibert might be first applied to the payment of his individual debts,' and that the partnership debts might be excluded from any share of the individual estate, until all the individual debts were satisfied. At the December term, 1844, of the court, a decree was made in conformity with the prayer of this petition,"from which the cause comes by appeal to this court.

The doctrine of the courts of equity, which appropriates individual effects to the payment of individual debts, and partnership effects to partnership debts in the first instance, which was applied by the probate judge in this case, we think does not control the mode of disbursing the insolvent estates of deceased persons, because of the statute laws of this state.

The SOth section of the law in regard to the estates of decedents (H. & H. 409) directs, “ that when the estate, both real and personal, of any person deceased, shall be insolvent, or insufficient to pay all just debts, which the deceased owed, the said estate, both real and personal, shall be distributed to and among all the creditors, in proportion to the sums to them respectively due and owing.” Another statute makes “ all promises, contracts and liabilities of copartners joint and several.” H. & H. 595.

These two laws taken together, in our view give to the creditors of the partnership the same right to satisfaction out of the estate, which individual creditors have. Before the death of either parther, the creditors of the firm may unquestionably recover judgment against any one of them individually, and proceed to make the debt out of his separate estate, just as if it were a separate debt. The death of one or more produces no change of this right. Both classes of creditors are in the same situation, and entitled to an equal pro rata proportion of the effects. See Tucker v. Oxley, 5 Cr. 40.

Little practical evil or inconvenience can result from this construction. If the partnership creditors choose to proceed against the surviving partners, their claim will be diminished to the extent they may obtain payment from them. If, on the other hand, they go against the estate of the deceased partner, his representative will stand in their place, and be substituted to their rights, in reference to the other partners.

The decree of the probate court is liable to be reversed for another cause. It has been repeatedly decided by this court, that after the report of commissioners of insolvency has been received and allowed, the court cannot, at a subsequent term, open it for any cause, unless the former orders were null and, void. See Herring v. Wellons, 5 S. & M. 355. The power of the court over it has ceased.

After the» final apportionment of the distribution of assets among the creditors, the executor or administrator becomes liable to them for their respective shares. H. & H. 410. The rights of the parties are then fixed, and the probate court cannot, after that term, make any further order, which would be binding upon them.

Another point in the canse has been fully disposed of, by the case of Assignees of Com. and Railroad Bank of Vicksburg v. Norcum & Burwell, 4 S. & M. 332.

Our conclusion in this case is founded entirely upon the construction of our statutes. We have not attempted to follow the rules which have prevailed, in the English courts of chancery, in the effort to work out an highly artificial equality of rights. These rules, especially in regard to the estates of bankrupts, have been unstable and fluctuating. We think our statutes mark out a plain course, and have endeavored to follow it.

This decision is not intended to conflict with the case of Bullock v. Dorsey, decided at the present term. The statutes which govern the two cases are entirely distinct.

The decree is reversed, and the fund directed to be distributed among all the creditors, individual and partnership, in proportion to the amount of their respective claims.

Decree reversed.

Mr. Chief Justice ShaeKey

delivered the following dissenting opinion:

I cannot concur in the opinion that the two.statutes referred to, have wrought any change in the law on the question involved. The first, (sect. 80 H. & H. 409) I think, was intended for no other purpose than to do away the old distinction between judgment debts, debts due by specialty, and simple contract debts, by making all of equal dignity, without which such as were superior in dignity would have been entitled to priority in payment. The second (sect. 29 H. & H, 595,) is merely a statute of pleading. For the purposes of a suit, it makes contracts joint and several, which before were joint only. But I do not think it changes any rule in regard to satisfaction. At common law, the creditor of a firm was obliged to sue all the partners jointly ; but, having done so, he had a right to have his judgment satisfied out of the individual property of any one of the partners, as well as out of the joint property of all. Lord Mansfield said, that all contracts of partners are joint and several; every partner is liable to pay the whole. In what proportion the others should contribute, is a matter among themselves. Rice v. Shute, 5 Burrow, 2611.  