
    John D. Scott, Administrator de bonis non of Johnson Silverberg, deceased, vs. Charles J. Searles et al.
    
    Injunctions are peculiarly matters of chancery cognizance; power to grant them has not been given to the probate courts, and they do not therefore possess it.
    Where exceptions to an answer in the probate court were overruled at the April term, 1843, and at the June term of the same year a motion for a rehearing was made: held, that the motion came too late and was properly overruled.
    An administrator of a deceased partner has no remedy in the probate court, by petition or otherwise, against the surviving partner, who has a right to the possession and control of the partnership effects : His remedy for the surplus of the partnership property, after settlement of the partnership liabilities, is either an action of account or bill in equity.
    S., administrator of J. S., deceased, who while living was of the firm of J. S. & Co., filed a petition in the probate court against the surviving partner of J. S. & Co., seeking, among other things, a discovery from the surviving partner of the partnership effects in his hands of J. S. & Co.: Held, that the probate court had no jurisdiction to compel the discovery.
    On appeal, from the probate court of Madison county.
    A bill was filed in the probate court of Madison county by the appellant, John I). Scott, administrator de bonis non of Johnson Silverberg, deceased, against the appellees, Charles J. Searles and Alfred T. Moore, setting- forth that the intestate, Silverberg, had been in his life-time, and until a short time before his death, in partnership with one of the appellees, Charles J.' Searles, ' under the firm of J. Silverberg & Co; and that he had also been engaged in another partnership with one Michael Yanderherst, under the firm of M. Yanderherst & Co.; that a short time before the death of Silverberg there had been a dissolution of both the above partnerships by mutual consent; and that Searles and Yanderherst had taken out letters of administration on the estate of Silverberg; that Yanderherst died soon after, and that Searles, after having acted some time thereafter as surviving partner, had also resigned his letters of administration; that Silverberg had brought into the firm of J. Silverberg & Co., its entire capital; that Silverberg was to have, by the articles of partnership, two-thirds of the profits and Searles one third; and that on the dissolution of the firm of J. Silverberg & Co., Silver-berg purchased all the debts due to that firm at the time of dissolution; that on the dissolution of the firm of M. Yander-herst & Co., the entire settlement of its effects was entrusted to Silverberg; that on the dissolution of the said firms, which took place about the first of the year 1838, Searles and Yander-herst purchased all the goods and merchandise on hand of the firm of J. Silverberg <fc Co. for about forty thousand dollars, and gave their notes to J. Silverberg for the same. The bill also alleges that the defendants, Searles and Moore, have now in their possession all the books, bonds, notes, bills, receipts, and the other evidences of debt due said firms and all the effects of said firms of J. Silverberg & Co. and M. Yanderherst & Co., and also many of the claims and effects belonging to the separate estate of Silverberg; that the assignment by Searles to Moore of many of the effects and debts due the above firms and said separate estate, which is made part of the bill, was fraudulent; that the defendants had made various assignments, alterations, transfers, and changes of the notes, bonds, and bills belonging to said firms and to said separate estate, and had taken notes in their own names, and in the names of others, for the debts and accounts due the above firms and the said separate estate, which it is alleged was done collusively and fraudulently; that Searles and Moore were wasting and converting to their own use the effects of said separate estate and of said firms. The defendants were alleged to be insolvent, and the securities of Searles on his administration bond are also alleged to be insolvent.
    The bill prays that the defendants be compelled to make out a full and complete account of the situation of the affairs of said estate and of said firms, and of their actings and doings therein : and that the defendants be compelled to deliver up to the complainant all the books and effects belonging to said estate and to said firms now in their possession; and that they answer the allegations of the bill with reference to the notes given by Searles and Yanderherst to Silverberg.
    
      Searles, in his answer, admits that Silverberg was to receive two-thirds of the net profits of the firm of J. Silverberg & Co., but alleges that on the dissolution of the firm of J. Silverberg & Co. Silverberg agreed to liquidate the debts of the firm of J. Silverberg & Co. and release him from all responsibility; but failed to comply with his agreement and was unable to do so; that he was compelled, in consequence, to give notes in payment of the debts of said firm; that the amount he and Vanderherst gave their notes to J. Silverberg, for the goods on hand of J. Sil-verberg & Co., was $41,621 78; that these notes were given to J. Silverberg for the use of J. Silverberg & Co.
    The answer gives a brief account of the disposition of these no.tes, which it is not deemed necessary to notice under the decision of the court. The stock of goods of M. Yanderherst & Co., amounting to $10,542 18, the answer states to have been placed on the books of J. Silverberg & Co. to the credit of M. Yanderherst & Co., as that firm was largely in debt to J. Silverberg & Co. It also states that the assignment to Moore was of notes and accounts belonging to the several firms of J. Silverberg & Co., Searles & Yanderherst, and Yanderherst & Steinberg, for the benefit of creditors of those firms; it denies that there are, in that assignment, any claims belonging to M. Yanderherst & Co. or to the separate estate of Silverberg, or that there was fraud in the assignment; or that the respondent is in the possession of any claims belonging to the separate estate of J. Silverberg. That on the 1st of April, 1836, the day on which the partnership of J. Silverberg & Co. was formed, all notes and accounts due J. Silverberg, were placed on the books of J. Silverberg & Co. to his credit, and became the property of the firm. The answer of Searles proceeds at length to respond further to the allegations of the bill, and to set up certain assignments made of the partnership effects, and to speak of their disposition; but not being necessary to the proper understanding of the opinion, they are omitted.
    Moore, in his answer, states that in the assignment made to him by Searles, there is no claim belonging to J. Silverberg in-dividuallyj or to his estate, or to the firm of M. Yanderherst & Co., and that he has not now in his possession any claim of the separate estate o,f J. Silverberg, or of the firm of M.. Yanderherst & Co. .
    At the April term, 1843, of the court, after having filed their answers, the defendants made a motion to dissolve the injunction and to dismiss the bill. 1st. For the reasons set forth in the answers. 2d. For want of jurisdiction. Which motion was, by the probate court, overruled as to the want of jurisdiction, and granted as to the dissolution of the injunction, unless the complainant would, on or before the May term of the court succeeding, give an injunction bond to the defendant, Moore, in the penalty of $1000, with security.
    The complainant then excepted to the sufficiency of the answer of the defendant, Searles: 1. Because, it did not deny or admit, that on the dissolution of the firm of J. Silverberg & Co., the effects of said firm were sold to J. Silverberg. 2. Because the answer did not give an account of the situation of the affairs of the firm of J. Silverberg & Co., and of his actings and doings therein. 3. Because it did not state whether J. Silverberg ever transferred any notes given to him by Searles & Yanderherst, or who then owned them, or whether they had been paid. 4. It was so vague that the court cannot ascertain from it, the extent of the assets belonging to said J. Silverberg, which exceptions were overruled by the court. To which opinion of the court the complainant excepted.
    At the June term of the court, the complainant moved the court for a rehearing, upon the decisions at the April term, overruling the complainant’s exceptions to the sufficiency of the answer of the defendant, Searles, and requiring the complainant to give bond, with security, for the continuance of the injunction against the defendant, Moore; or that the injunction be dissolved; which motion was also overruled, and exceptions taken.
    The complainant then moved the court to reinstate the injunction ; which was refused and excepted to.
    At the same term, the complainant’s exceptions to the sufficiency of the answer of the defendant, Moore, filed the 15th of April, 1843, were also overruled by the court. This answer was excepted to, because it did not render an account of Moore’s acts in the affairs of the firm of J. Silverberg & Co., nor show how much money of said firm had been received by him, and in what manner he had paid it out. Exceptions were also taken to this action of the court.
    ‘ The complainant, at the same term, moved the court for an order directing the defendant, Searles, on or before the next term of the court, to “ amend his answer and therewith file a full and complete statement of the situation, means, effects and liabilities of the firm of J. Silverberg & Co. at the time said Searles undertook the management of said firm, after the death of said Silverberg, and of his acts in relation thereto, and of the present effects and liabilities thereof; and also that he make a like statement of the affairs of the firm of M. Yanderherst & Co.” Which motion was also overruled and the opinion excepted to. From which various orders thus excepted to, the complainant appealed to this court. #
    
      Calhoun and Scott, for appellants,
    contended:
    1. That the probate court erred in overruling the motion of the appellants to reinstate the injunction; on this point they cited the. following authorities :
    “Executors and administrators having given security for their administration, are not required to give security on obtaining appeals, writs of error or supersedeas.” 1 Hen. & Mun. R. 16; Wilson v. Wilson’s Adm’r. 1 Rand. 393; Hall’s Dig. (Ya.) 495, tit. Security; 1 Pirtle’s Dig. 417, and authorities there cited. They also cited Davis v. Dixon’s Adm’r. 1 How. R. 67; 2 Johns. Ch. R. 204; Eden on Inj. 146-154, and notes on p. 153; 1 Paige R. 100; 3 Johns. Dig. 122 ; Eden on Inj. 73-76 ; Walternan v. Gillespie, 5 Paige R. 112.
    2. They contended that Searles, being a mere partner in the profits, had no interest in the capital stock of J. Silverberg & Co., and that upon the death of Silverberg, the interest in the goods vested in his representatives ; and cited Collyer on Partnership, 83-90; and particularly the case of Meyer v. Sharpe, there reported; 5 Taunt. 74; Smith v. Watson, 2 Barn. & Cres. 401.
    
      3. They contended that the agreement that one partner shall take the effects and wind up the business, vests the property of the firm in that partner, and if he become bankrupt the property vests in his assignees ; and if he dies it goes to his representatives. 1 Mad. Ch. 96; Collyer on Part. 511; Graham v. Caldwell, 5 Cow. 489; Gow on Partnership, 306, 349; Ex parte Ruffin, 6 Yesey, 119; Ex parte Williams, 11 Yesey, 3; Ex parte Harris, 2 Mad. R. 589 ; Ex parte Fell, 10 Yes. 347.
    4. That the probate court had jurisdiction, Searles having administered upon the estate of Silverberg and having thereby become bound to deliver, under the statute, to the subsequent administrator, the effects of Silverberg in his possession, including the surplus of the partnership effects. Blanton v. King, 2 How. R. 856; Carmichael v. Browder, 3 How. 252. It is too late to object to jurisdiction after answer. Cable v. Martin if Bell, 1 How. 561; 2 Johns. Ch.R. 369; 41b. 290; 10 Johns. R. 595 ; 4 Cow. 726, 727.
    5. The probate court erred in overruling the exceptions to Searles’s answer, and the motion for a more full answer. Methodist Episcopal Church, v. Jaques, 1 Johns. Ch. R. 75; Mitf. Plead. 374, 376, (Am. ed.) ; Phillips v. Provost, 4 Johns. Ch. R. 205, and authorities there cited; Mitf. Plead. 377-83, (Am. ed.) Frost v. Beckman, 1 Johns. Ch. R. 288; Cuijler v. Bogart, 3 Paige Ch. R. 186; Insurance Co. v. Lynch, lb. 210; White v. Williams, 8 Yes. 193; 2 Sto. Eq. 501-509; Fonb. Eq. 31, (4th Am. ed. in notes); Marquis of Lansdowne v. the Marchioness of Lansdown, 1 Mad. Ch. R. 74; Jesus College v. Bloom, 3 Atk. 262; Piers v. Piers, 1 Yes. 521 ; Lee v. Alston, 1 Brown’s Ch. R. 194; 3 lb. 37; Bishop of Winchester v. Knight, 1 Peere Wms. 406. Even though Searles was surviving partner only, yet he was bound to account to the administrator de bonis non. Toller’s Ex. 155, 163, 454; 3 Kent’s Com. 57; Gow on Part. 378, 379; Collyer on Part. 168; Gram v. Caldwell, 5 Cow. 489.
    6. That the- assignment to Moore was fraudulent and void: 2 Johns. Ch. R. 576, and authorities cited.
    
      A. T. Moore, for appellees.
    This is an appeal from an interlocutory order of the probate court of Madison county, in a plenary proceeding in that court, and the question it presents to the consideration of this court, necessarily embraces in its investigation, an inquiry into the nature and extent of the jurisdiction and powers of the probate court. The question whether, under the state of facts disclosed by the bill and answers, Searles is bound to account in that court, can only be determined by deciding whether the probate court has such a jurisdiction as will embrace the whole subject-matter, and authorize it to compel an account, for that is no legal jurisdiction which cannot be legally enforced.
    It is not denied that partnership effects may, by contract between the partners themselves, be converted into separate property. But in this case it is not shown, nor attempted to be shown, that such a contract was ever made, much less that it was executed, by a delivery of the effects to Silverberg, without which the contract itself would have been a mere nullity. In the absence of any such showing, will it be contended that this mere verbal understanding or agreement, unattended with a delivery of the effects, was such a contract as would entirely change the character of the property and the relative rights of creditors ? Could such an agreement be set up either at law or in equity, against the claims of joint creditors 1 By no means. On the contrary, it would be set aside in equity as fraudulent and void as to the creditors of the firm.
    If, then, this understanding or agreement was not such a contract as would effectually change the character of the property, and, of a consequence, the relative rights of creditors, it was not such a contract as would divest Searles of his character or of his rights and interests, as a partner. These, therefore, continued unimpaired, up to the time of Silverberg’s death, when Searles succeeded to all the rights and all the liabilities of a surviving partner, and in that character he now stands before this court, with the effects of a firm in his hands, in a course of liquidation. Can the probate court divest him of this character or of these rights 1
    
    It is possible, if the complainant below had proceeded against Searles as surviving partner, and sought an account of his .intestate’s share of the profits and stock, that, under the decisions of this court in Blanton v. King and Carmichael v. Brow-der, the jurisdiction of the probate court might have been made to embrace the proceeding — at least, it would have been acquiesced in, and the account cheerfully rendered. But he is not proceeded against in that character. He is charged as a wrongdoer, and all the effects of the firm in his hands are claimed as the separate property of Silverberg’s estate. Searles resists this claim —relies on his legal title as partner, and insists on his legal rights of survivorship.
    Thus it will be seen, that in these adverse claims, a disputed question of title is necessarily involved; and, in the pertinent language of a learned judge of this court, (in delivering the opinion in the case of McRea v. Walker, 4 How. 455,) I would ask — “can parties proceed in that (the probate) court, for the-purpose merely of settling a disputed question of title 1 ” It is contended they cannot — and so, .in effect, says Chancellor Buckner, in Arnold & Pinckard v. Hamer et al. 1 Freem. Chan. Rep. 509. Though the probate court may have exclusive jurisdiction over all property helon'ging to an estate, it has not the power to adjudicate questions of title, and decide what property does or does not belong to an estate. When the title of the estate is established by an action at law, its jurisdiction attaches, but not before. If it were competent for the probate court to adjudicate and settle the disputed question of title to the effects in controversy here, it could as well adjudicate and settle a disputed question of title to a negro or a tract of land, for they are all property and equally the subjects of title.
    Whether the effects in controversy here, belong, of right, to the one or the other of these claimants, depends upon the solution of questions purely legal in their character, and “ when a cause depends simply .and entirely upon the solution of legal questions, the proper forum for the decision of those questions, is a. court of law.” 2 Johns. Chan. Rep. 376.
    If the conflicting claims of these parties raise a question of title to the property in dispute, it seems clear that it is one of which the probate court has no jurisdiction, and is therefore in-competen! to decide. It therefore has no power to compel an account in this case ; for, in order to do so, it would have first tp decide the title to the property, to be in the estate of Silver-berg. As the separate property of Silverberg, it is claimed, and for it, as the separate property of Silverberg, Searles would have to account in this proceeding, if at all.
    If a court has no jurisdiction of the principal question, it has of none of its consequences or incidents. 9-Johns. R. 239. Thus it is laid down, that a common law court has no cognizance of any question incident to that of prize, because, they are incompetent to embrace the whole subject-matter, by deciding the question of prize— that being a question for the courts of admiralty alone. Le Caux v. Eden, Doug. 594.
    So the probate court has no cognizance of any question incident to that of title, because it is incompetent to embrace the whole subject-matter by deciding the question of title — that being a question for the courts of law alone.
    The question of title being the principal question in this case, and the right to an account, a mere incident to it — if the court has no jurisdiction of the one, it has not of the other — being incompetent to decide the question of title, it has no power to compel the account.
    Admit, however, for the sake of argument, that the probate court has full and complete jurisdiction of the question of title, and all its incidents; still, the complainant is not entitled to a decree for an account. Courts of equity will not compel a party to account at the instance of a mere intermeddler. The right to an account is an incident to title only, and if this be disputed it must be established before equity will interfere. Jer. Eq. Juris, (ed. 1830) 506 ; Ambl. 613. In order to lay the foundation for an interlocutory decree to account, the facts in relation to the account must not only be put in issue, but there must be some evidence to show that the facts are probable, and the equity proper. Freem. Ch. R. 502. The court will not make a reference upon the mere speculation that parties may adduce testimony. Ib. This, principle is so well recognized by courts of equity that it is deemed unnecessary to multiply authorities.
    
      Now, as to the parties before the court. The probate court has jurisdiction, of such persons only as bear some official relation to the court, or are connected with, or interested in, the administration or distribution of estates. Oreen v. Tunstall, 4 How. 638. The appellees, here, bear no such relation, and have no such connexion or interest, and are therefore not parties of such a character as will support the jurisdiction. If it does not appear upon the record, that the character of the parties would support the jurisdiction, it is fatal. 4 Cranch, 47. It will doubtless be contended that, as the defendants below did not plead, to the jurisdiction, it is now too late to object to it, and that having submitted to answer, they admitted the jurisdiction. The record will show, that the first motion made in the case, (at the term at which the answers were filed, and before any step was taken,) was, to dismiss the bill for want of jurisdiction. This was a sufficient plea to raise the objection in the court below; in fact, under the usual ..practice in those courts, it was the only mode of raising it. It would have supported an appeal. But we were not bound to appeal.
    W here a limited tribunal (and the probate court is limited by the constitution to certain specific subjects of jurisdiction) exercises a jurisdiction which does not belong to it, it creates no necessity for an appeal. Attorney General v. Lord Hotham, 1 Turn. & R. 219; 3 Russ. 415.
    The objection too, is apparent on the record, and may be taken advantage of, at any stage of the proceedings. 1 Mass. R. 347. This court will not rule parties to strictness of pleading in the probate court.
    Where a court has, originally, no jurisdiction of a cause, it cannot acquire it, either by the consent of the defendant, or by his confessing judgment. Cojjin v. Tracy, 3 O. R. 139.
    
      Scott and Calhoun in reply.
    1. The jurisdiction delegated, and powers granted by the constitution and statutes of this state to the probate court', are amply sufficient to enable it to administer the remedies prayed for in the complainant’s bill.
    
      The old constitution provided “that the legislature shall have power to establish, in each county within the state, a court of 'probate for the granting of letters testamentary, and of administration for orphans’ business,” &c.
    The new constitution gives a more extended grant of jurisdiction, by providing that “ a court of probates shall be established in each county of this state, with jurisdiction in all matters testamentary and of administration, in orphans’’ business, and the allotment of dower; in cases of idiocy and lunacy, and persons non compos mentis.” In the old constitution, the legislature was to establish the court, but the new constitution itself establishes the court of probates, and delegates the jurisdiction. In the old constitution the jurisdiction to be conferred was merely “ for the granting of letters testamentary and of administration in the new, the delegation is directly 'made of “jurisdiction in all matters testamentary and of administration.”
    We further remark that all the statutes of this state giving to the probate court the ample and extended mode of proceeding of a court of chancery, as of plenary proceedings by bill &c., were passed under the above provision in the old constitution empowering the legislature to establish the court; which provision is far more limited in delegation of jurisdiction, than the provision in the new constitution.
    The allegations of the bill make the effects of the firms the property of the estate of the complainant’s intestate.'
    It will be seen by the court, that some considerable space of time elapsed between the resignation of the letters of administration by the defendant, Searles, ánd the taking out of letters of administration de bonis non by the complainant. During which time, according to the allegations of the bill, the defendants had been committing acts of fraud and waste, and also in the effects of the two firms since the death of Silverberg. In the confusion produced in these assets by such unlawful acts of the defendants, there is certainly some tribunal to compel them to discover and render an account of what they have done. The question is, what is the proper tribunal 1
    
    
      And first, that an account and discovery can be compelled by some court in such cases, although the title of the plaintiff is denied by the defendants, and even although such account may not be material to the title of the plaintiff. We refer the court to Mitf. PI. (3d Am. ed.) 377 to 382; 11 Yes. 304; Sweet v. Young, Ambl. 303. See also Mitf. Pl. (3d Am. ed.) 345 to 352, and authorities there cited; White v. Williams, 8 Yes.’193; Ball & Beat. 224; Sommervitte v. Makay, 16 Yes. 382;-v. Harrison, 4 Mad. Ch. R. 252 ; Lansdowne v. Lansdowne, 1 lb.
    But the subject of jurisdiction must be considered on the bill alone, without regard to the answers.
    Then can there be any court in this state, so peculiarly fitted to administer the remedy sought in this case, as the court of probate with the chancery powers with which it is clothed by the statutes of this state 1
    
    
      1 In any point of view, the defendants are bound to render the account as prayed in the bill.
    1. If Searles is to be considered as the retiring administrator, still retaining the assets unadministered, the statute, then, itself gives the right to the administrator de bonis non to demand those unadministered effects from him. See PI. & H. 403, s. 64. This right of demand in the administrator de bonis non, it is conceived, according to the universal principle of law recognized in the above cited cases, entitles him to an account of such unadministered assets, whether-the defendants deny he has any title to them or not, especially if those assets have been thrown into a confused and disordered state, by the unlawful and fraudulent conduct of the defendants.
    But the same statute not only gives the administrator de bonis non the right to demand and sue the retiring administrator on his bond, for the unadministered assets, but gives the power to the probate court to make an order for the delivery up of such assets. H. & H. 403, s. 64. Which general power and control over the assets by the probate court, is recognized generally throughout the probate laws of this state. See H. & H. 399, s. 48, p. 407; s. 74, and other sections.
    
      2. But if the defendants be unlawful intermeddlers or executors de son tort, they can derive no advantage in law by setting up such defence. All such characters are subject to all the remedies against retiring or acting administrators. Nor have such characters ever been allowed in any court to deny that they have taken upon themselves the administration of the estate.
    The position of the appellees, that the remedy is at law, is hardly deemed worthy consideration. There can be no remedy at law for such a case as this, where the defendants retain and cancel the items sued for. It is a casein which a court clothed with some chancery powers can alone administer a “full, complete, .and adequate remedy.” The decision of a court of law never could be made to meet the exigencies of the case. It is impossible to institute a suit in such a court as a court of common law, to reach anything iike a remedy in this case; and this, according to the allegations of the bill, has been principally caused by the fraudulent conduct of the defendants themselves. There is also fraud, waste, irrepairable mischief charged, and an account and injunction prayed, all of which are grounds of resorting to a court having some chancery powers.
    The whole method attempted by the appellees to show that this is a matter properly cognizable in a court of law, by trying to make it a question of disputed title to property, is equally futile. In such preliminary questions as jurisdiction, the allegations of the bill must be taken as true. If the defendants have still the rights of surviving partners they should have plead it to the jurisdiction, and proved it under the allegations of their plea. Having failed to do this, they are now to be considered as either retiring administrator, or executors de son tort, and as such, equally amenable to the probate court. The jurisdiction of any court might be ousted by the defendant’s coming in and setting up a case properly cognizable in another court, if the position of the appellees be true.
    The jurisdiction of the probate court is not limited, but general over all the subjects over which jurisdiction is given it. Carmichael v. Browder, 3 How. R. 255. The position of the appellees, that an objection can be taken to the jurisdiction at any stage of the proceedings, does not apply to such a court. The principle of the cases 'cited by the appellees on this point only applies to courts of special andlimited jurisdictions,unless the want of jurisdiction is manifestly apparent on the proceedings, as if an action of ejectment were brought in the probate court for a tract of land in England.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The complainant, as the administrator de bonis non of Johnson Silverberg, filed his petition in the probate court of Madison county, against Searles, as former administrator, and against Moore, to whom Searles had made an assignment of various choses in action in trust, for the benefit of creditors. Silver-berg, in his life-time, it seems, was a member of two mercantile firms, one of which consisted of Silverberg and Charles J. Searles, under the name of J. Silverberg & Co. and thé other consisted of Silverberg and Yanderherst, under the name of M. Yanderherst & Co., both of which were dissolved during the life-t.ime'of Silverberg. The petition charges that the'merchandise of Silverberg & Co. was purchased by Searles & Yander-herst, who gave their notes for about forty thousand dollars to Silverberg individually, who agreed to pay all the debts of the firm, and was to have the effects.1 After the death of Silver-berg, Searles and Yanderherst administered. Yanderherst subsequently died, and Searles resigned his letters. The bill charges Searles with using the notes and accounts due Silver-berg & Co. and M. Yanderherst & Co., and Silverberg individually, and of having assigned them away to Moore, in trust, notwithstanding the agreement made when the firm was dissolved, and it seeks a discovery of the amount and character of the debts, and also of what disposition has been made of the notes given by Searles & Yanderherst on the purchase of the stock of goods, The bill also prayed an injunction, which was granted by the probate judge.

Searles, in his answer, admits the existence of the pártnership and the dissolution, but insists that Silverberg failed to comply with his agreement to pay the debts, many of which he has been compelled to arrange and 'settle since Silverberg;s death. He denies that the notes given by himself and Vander-herst for the goods purchased of Silverberg & Co., were given to Silverberg individually, but to Silverberg for the use of the firm, which notes were entered on the books of Silverberg & Co. as bills receivable. .Heavers that the assignment was made for the benefit of the creditors of the several firms, and claims a right to assign for the purposes mentioned, as surviving partner of the several firms; but he denies having assigned any of the notes of Vanderherst & Co., of which he was not a member, or of Silverberg individually. And it is also averred that by the assignment the proper debts of the several firms were to be paid out of amounts due them respectively. Respondent admits that he holds some notes given to him as the administrator, but avers that they have been accounted for in his final settlement, and discloses the amounts and dates of the notes given on the purchase of the stock of goods of Silverberg & Co.

Moore, in his answer, admits the assignment, but denies that any of the choses in action belonged to the estate of Silver-berg, or that he has any such in his possession; and avers that the assignment was made in good faith, and that he has so acted.

The respondents moved to dismiss the bill, which the court refused to do, whereupon they moved to dissolve the injunction, which the court decided should be done, unless the complainant would enter into bond, with sufficient security, by the May term of the court. •

The complainant brings up the appeal from several decisions of the court made during the progress of' th'e cause. First, from an order overruling a motion to require Searles to render a statement of the.effects of Silverberg & Co., and to amend his answer. Second; an order made, overruling a motion for a rehearing on the order dissolving the injunction, and in refusing to reinstate the same; and also to a refusal to sustain exceptions to the answer of Searles.

As to the orders of the court in reference to the injunction, there is no error, for the court had no power whatever to grant.it in the first place, and of course it did not err in- dissolving an injunction which it had improvidently granted. Injunctions are peculiarly matters of chancery cognizance. Power to grant them has not been given to the probate courts, and they do not therefore possess it.

The exceptions to the answer were overruled at the April term, 1843, and the motion for a rehearing was made at the June term following, which was too late, and the motion was consequently properly overruled.

■ There is but one other question presented by the appeal, and that is the decision overruling the motion to require Searles to file a statement of the effects of Silverberg <fc Co. If this proceeding was intended >to be against Searles as administrator, then the application, provided it. were a proper one for the action of the court, is fully met by the answer of Searles, who states that he had made a final settlement of his administration, and had fully accounted for everything received by him. He also flatly denies having anything in possession belonging to the' estate of Silverberg, claiming to hold the partnership effects as survivor for the purpose of paying the debts of the firm, which he has a right to do. If, on the other hand, it was intended to be a proceeding against him as surviving partner, then it is difficult to perceive how the probate court could exercise jurisdiction. Partnership effects are assets, it is true, which the administrator has a Tight to administer. But as they are first liable for partnership debts, the 'administrator can only have the surplus. All actions survive to the surviving partner, who has a right to hold the choses in action for the purpose of collecting and applying the proceeds. He becomes liable to the administrator for any surplus, but the administrator’s rémedy is not in the probate court. Either an action of account, or a bill in chancery would seem to be more appropriate. Toller’s Law of Ex. 155, 163. The court therefore, having no power to decree in the matter, very properly overruled the application. Assuming, then, that the orders were such as might be appealed from, still there is no error, and the judgment must be affirmed.  