
    Samuel Stowe versus John Hobart, Administrator, with the Will annexed, of William Watson.
    A and B were sureties on a bond for C ; a suit was brought on the bond, and A paid it ; A died, and by his will made C his residuary legatee and devisee. A’s estate was sufficient to pay all debts and legacies, and to leave a surplus for C, which however would not be sufficient to pay all the debts of C, who was insolvent. A’s administrator sued B to recover a contribution from him as co-surety on the bond ; and B brought a bill for an injunction against the suit at law Held, that this Court had no jurisdiction of the case under St. 1817, c. 87.
    This Court refused to give an opinion, whether the facts stated were a defence to the suit at law, which was pending in the Common Pleas, although the parties had agreed to submit the question to this Court, and to be bound by the decision.
    This was a suit in equity. The plaintiff’s bill alleged, that during the life of the defendant’s testator, the plaintiff and the testator became sureties for Samuel D. Watson, on a guardianship bond given by the latter as principal, to the judge of probate ; that judgment was recovered on the bond against the three obligors, on which an execution issued, which was satisfied out of the estate of the testator.
    The bill further alleged, that the testator’s will made Samuel D. Watson, who was his only son, his executor, and residuary legatee and devisee ; that Samuel D. Watson, being unable to give bonds as executor, the defendant was duly appointed administrator with the will annexed ; that the personal and real property left by the testator was more than sufficient to pay all the debts and legacies due from the estate, and that a large balance would still remain for Samuel D. Watson, as residuary devisee ; that Samuel D. Watson, when his father died, was insolvent, and still continued so, though some of his creditors had satisfied their debts out of his interest in his father’s /.state.
    The bill further alleged, that it was not necessary for the payment of the debts, legacies and charges due from the testator’s estate, that the defendant, as administrator, should recover from the plaintiff, as co-surety with the testator, any part of the money paid by the testator on the bond ; and if the defendant should recover any part of it from the plaintiff, he would hold it wholly in trust for Samuel D. Watson, the principal on the bond ; and that if the defendant should pay it over to Samuel D. Watson, the plaintiff would be utterly unable to recover it back from the latter.
    
      Oct. 2 d.
    
    The complaint of the bill was, that the defendant, knowing the premises, had brought a suit in the Common Pleas against the plaintiff for the money paid by the testator on the bond, which action was still pending.
    The plaintiff further showed, that he had not, in his opinion, any defence at law to the action ; that the defendant’s only claim to recover was as a trustee in law under the will, and in the settlement of the estate, of the deceased ; and that in equity the defendant ought not to be permitted to recover in that suit.
    The prayer of the bill was, that the defendant should be restrained by injunction from proceeding in his suit in the Common Pleas.
    The defendant demurred to the bill.
    The parties also filed an agreement in the case, by which they requested, that if the Court were of opinion that they had not jurisdiction or authority to grant the injunction, and yet that the facts stated in the bill would be a defence to the action at law, the Court would decide accordingly ; and they agreed that the decision should be binding on the parties in the same manner as if that suit were pending in this Court.
    
      J. Davis and Washburn, for the plaintiff.
    This Court has jurisdiction of this case under St. 1817, c. 87, giving them equity powers in “all cases of trust arising under deeds, wills or in the settlement of estates ; ” the administrator is the trustee, Watson the cestui que trust, and the property devised is the trust property. Divight v. Pomeroy, 17 Mass. R. 327; I Madd. Ch. Pr. 553, 577, 578, 286; Winship v. Bass, 12 Mass. R. 202; Dawes v. Boylston, 9 Mass. R. 352; M'Kay v. Green, 3 Johns. Ch. R. 56.
    If the Court have jurisdiction, it is a proper case for an injunction ; for Watson, the person for whose benefit the money is recovered, will become liable to repay it to the plaintiff as soon as the plaintiff has paid it to the defendant, the administrator. 1 Madd. Ch. Pr. 130, 134, 451, 455; Com. Dig Chancery, D 9; Hill v. Turner, 1 Atk. 516; Marine Ins. Co. v. Hodgson, 7 Cranch, 336; Eden on Inj. 3; Jlnony
      
      mous, 1 Atk. 491; Toll. Ex. 489; Coxe’s Dig. 726; Tidd’s Pr. 604; Winch v. Keeley, 1 T. R. 622; Ward v. Lewis, 4 Pick. 523; Com. Dig. Princ. and Surety, H; Miller v. Ord, 2 Binney, 382; Praed v. Gardiner, 2 Cox, 86; Hanson v. Gardiner, 7 Ves. 307; Foster v. Spencer, 2 Johns. Ch. R. 171; Boultbee v. Stubbs, 18 Ves. 20; Simson v. Hart, 14 Johns. R. 63, 74, 75.
    
      Newton, for the defendant,
    contended that the Court had no jurisdiction undei the statute of 1817. Hunt v. Maynard, 6 Pick. 489. It is evident from the legislature’s having expressly granted a power to issue injunctions in certain cases, that no such power was intended where it was not expressed. St. 1827, c. 88.
    
      Oct. 6th.
    
   Parker C. J.

delivered the opinion of the Court. This bill shows a very clear case of equity ; but not such a one as is within the jurisdiction of this Court ; and the remedy for the plaintiffs must be at common law. We have no power in chancery, except by statute ; and the general authority to issue injunctions has not been given. The exercise of such a power exists only when the subject matter falls within the jurisdiction granted by the legislature ; such as the case of trust created in the manner prescribed in St. 1817, c. 87, or partnerships, waste or nuisance, provided for in subsequent statutes. Injunctions against proceeding at law are within the general jurisdiction of chancery, which we are not authorized to assume. But it is insisted that Hobart, against whom the bill is filed, is a trustee within the meaning of St. 1817, c. 87 ; because, being administrator of William Watson, and Samuel D. Watson being residuary legatee, Hobart should be considered a trustee on a trust arising in the settlement of an estate. We have not been able yet precisely to ascertain the meaning of the legislature in this last branch of trusts, specified in the act giving this Court equity jurisdiction. If thereby an executor or administrator is rendered a trustee and liable to this process, we think it must be only in favor of heirs, legatees, creditors or others interested in the settlement and disposition of the estate. There is certainly no relation of trustee and cestui que trust between the present plaintiff and the administrator. They stand in the relation only of debtor and creditor. This bill must be dismissed ; and we decline determining, extrajudicialtys whether the matter alleged will constitute a defence in the suit at law, pending against the present plaintiff in favor of Hobart, as administrator. That question must come before us in another shape.  