
    Charles J. Searles et al. vs. John D. Scott, Administrator of J. Silverberg.
    The probate courts in this state have no power to. appoint a receiver in any case.
    Where, upon the death of one partner, the survivor assigns to a trustee partnership effects to secure creditors, the administrator of the deceased partner cannot implead the surviving partner and the trustee in the probate court, to compel them to account for the effects thus transferred.
    In such case, the probate court would have jurisdiction of neither the persons, nor the subject-matter.
    On appeal, from the probate court of Madison county; William S. Bailey, judge.
    At the February term, 1843, of the probate court, John D. Scott administrator de bonis non of the estate of Johnson Silverberg, filed a bill against Charles J. .Searles and Alfred T. Moore, alleging, in substance, that his intestate was until within a short period of his death, engaged in partnership in the mercantile business with Searles, under the firm of J. Silverberg & Co., which was dissolved by mutual consent. That Searles and Michael Yanderhurst administered on Silverberg’s estate until the death of the latter, when Searles resigned his letters, and the complainant was appointed de bonis non. That Silver-berg and the said Yanderhurst, under the firm of M. Yanderhurst & Co., were also engaged in partnership in a similar business until its dissolution shortly before Silverberg’s death ; that of the firm of J. Silverberg & Co., Silverberg had all the capital, and was to have two-thirds of the profits; that by agreement between the partners, Silverberg was to have control, and settlement, and ownership of all the effects of the firm after the dissolution of each, both of J. Silverberg & Co., and of M. Yanderhurst & Co. That Searles and Yanderhurst bought out J. Silverberg & Co., and united in partnership, executing their joint notes for $40,000, to Silverberg, for the purchase-money. That said Searles and Alfred T. Moore have in their possession all the books, accounts, notes, and choses in action of the two firms in which Silverberg was a partner, and also many of those belonging to Silverberg individually; that Searles had made to Moore a fraudulent assignment of all the debts due J. Silverberg & Co., and M. Vanderhurst & Co., and many due Silverberg individually; which assignment, with a. schedule of the debts, was exhibited with the bill. That Searles and Moore had collected, assigned, and used various of these debts with a view of defrauding Silverberg’s estate; that they are insolvent, and Searles’s sureties on his administration bond are insolvent.
    The prayer of the bill was that Searles might produce the books, notes, &c. of the respective firms ; have a full accounting of what he had collected and used;-and be compelled to deliver to the complainant all the books, notes, and accounts left undisposed of in which J. Silverberg, either as partner or individually was interested. That a similar order might be made with reference to Moore, and he also be compelled to exhibit the condition of the claims in his hands, and be compelled to account fully; and that an injunction &c., ynight issue.
    Searles and Moore both answered the bill in detail; but it is not deemed requisite to set their answers out in full. They denied all fraud.
    At the July term, 1843, Scott moved that John T. Cameron, the clerk of the probate court, be appointed a receiver of the books, and other evidences of debt due the firm of J. Silverberg &. Co., until the final determination of the cause.
    The order was granted in these words: “ Ordered by the court, that this motion be sustained, and that the 'defendants, Searles and Moore, deliver to John T. Cameron, who is hereby appointed a receiver for the safe keeping of the same, all the books, notes, accounts, and other evidences of'debt belonging to the estate of J. Silverberg, deceased, and to the late firms of J. Silverberg & Co., and M. Yanderhurst& Co., which are now in their possession, and that they pay over to the said Cameron any money they may have on hand, of the separate estate of said Silverberg, or belonging to either of said firms; and also any moneys the said Searles and Moore, or either of them may hereafter collect belonging to said estate, or either of said firms; or claims now in process of collection. Said books, notes, accounts, and other evidences of debt and money, to be held by said Cameron, to abide the final decision of this cause.”
    From this order Searles and Moore appealed.
    
      A. H. Handy, for appellants.
    This case presents two questions : 1st. Has the probate court the power to appoint a receiver 1 And 2d. Is this a proper case for the exercise of that power ?
    1. The appointment of receivers is a power peculiar to the courts of chancery. In England, the ecclesiastical courts exercised no such power, and whenever its exercise became necessary for the protection of the decedent’s estate, the aid of chancery was invoked; as where an executor became bankrupt, the court of chancery was called upon to appoint a receiver of the estate. Toller on Exec. 488.
    The appointment, by the spiritual court, of an administrator pendente lile, is entirely different from the appointment of a receiver. Such an administrator was nothing more than the administrator ad colligendum under our statute. And even when an administrator pendente Hie had been appointed, the court of chancery had to be resorted to when a receiver was required. Atkinson v. Henshaw, 2 Yes. & Beam. 85.
    2. The probate court had no such power in the case presented. It had no power over Moore, because he was a mere stranger to the court, in no wise amenable to its jurisdiction. It had none over Searles, because, 1st, as administrator, he had passed his final account, and been discharged. His official relation to the-court had ceased with the discharge, and with it the power of the court over him. Green v. Tunstall, 4 How. 638-. 2d, Because the notes and claims assigned by him, are shown by his answer to have belonged to him as surviving partner of Silverberg, and were assigned by him, for the purpose of paying the debts of the firm. This he had a perfect right to do, as is fully settled in a case between these same parties, and upon the same subject-matter, decided at January term, 1845. Egbert v. Woods, 3 Paige Oh. R. 526 ; 1 Brock. R. 462; Collyer, 63,‘n. 17, 131, n. 40.-
    
      Scott and Calhoun, for appellee.
    1. The court of probate has the same power with the ecclesiastical courts in England. The latter courts have power to appoint a person to take care of the property while a contest is going on therein, for the right of administration to an estate, who was commonly called an administrator pendente lite. Ball v. Oliver, 2 Yes. & Beam. R. 95; Atkinson v. Henshaw, 2 lb. 85 ; Knight v. Duplessis, 1 Yes. R. 324; Richards v. Chase, 12 lb. 462; Walker y. Wollaston, 2 Peere Wms.' R. 576.
    2. The ecclesiastical court has power in England to appoint temporary and limited administvfitions for any special purposes. 1 Williams oil Ex. 320, 331. This power would embrace the power given by our statute, to appoint an administrator ad colligendum; but it seems to us, that any of these powers are equivalent to the power to appoint a receiver.
    3. Independent of this view, the statutes of the state authorize the appointment of a receiver. H. & H. 399, § 48; lb. 403, § 64; lb. 407, § 74.
    4. It is said Searles and Moore not being administrators, are not amenable to the jurisdiction of the court. As executors de son tort, in which light they may be regarded, they are liable to all the remedies which exist against a regularly appointed administrator. 1 Will, on Ex. 141.
    5. It is. too late, after answer, to raise the question of'jurisdiction. Cable y. Martin, 1 How. Rep. 561; 2 Johns. Ch. Rep. 369 ; 4 lb. 290. If it had jurisdiction, the court could appoint a receiver, which seems to. have been the opinion of the late chancellor; Simmons v. Henderson, Freem. Ch. R. 501.
    
      6. Where fraud, waste, insolvency, or danger of irreparable mischief is alleged, a receiver is always appointed. Ball v. Oliver, 2 Ves. & Beam. 95; Mit. PL 122; Eden on Inj. 135 •, Boyd v. Wickham, 3 Johns. Ch. R. 48. Fraud and insolvency both exist in this case.
   Per Curiam.

It seems that Johnson Silverberg, in his lifetime, was a member of two mercantile firms. After his death his partners administered, and settled up the administration accounts. Searles, as a member of the partnership, assigned, as it is alleged, a large amount of notes and accounts to Moore, for the benefit of creditors, and this proceeding' was instituted by Scott, as the administrator de bonis non, to compel Searles and Moore to account for the effects. After the defendants answered the petition, the plaintiff moved the probate court for an order on Searles and Moore, to compel them to deliver up the books,' and-.other evidences of debts due the firm of J. Silverberg & Co., and to appoint a receiver, which motion the court sustained.

The court had no jurisdiction either over the subject-matter or the persons. Moore was a mere trustee, and Searles was entitled to control the effects of the firm as surviving partner. This is not an appropriate remedy for an administrator, in reference to partnership effects. But even if the subject-matter and the persons had been subject to the jurisdiction of the court, it has no power to appoint a receiver in any case; and much less in such a case as this. The probate courts may, in certain cases, appoint administrators ad colligendum, but a receiver is quite a different officer. The court had no power to appoint an administrator ad colligendum in this case, because there was an administrator in chief.

Judgment reversed.  