edy whereof it was enacted that no letters of administration should thereafter be granted by the judge of probates, or by any surrogate, upon the estate, goods, chattels or credits of any person, represented as having died intestate, until due proof be made before the said judge or surrogate, to his satisfaction, that such person was dead, and died intestate.' And substantially the same provision has been continued in the statutes to this day. This provision has made it the duty of the surrogate to institute a judicial inquiry into the facts of death and intestacy. The statutes furnish a complete system. The surrogate is to take judicial action, and determine the facts upon which his jurisdiction rests. If the case be a proper one, he must issue letters, and then the letters are conclusive evidence of the authority of the administrator, until reversed on appeal or revoked: 2 R. S. 80, sect. 56. There is ample power to revoke or vacate letters in case they have been improperly granted, but in that case the acts of the administrator done in good faith are valid: 2 R. S. 80; sect. 47; Laws of 1837, ch. 460; Flinn v. Chase, 4 Denio 85; Kerr v. Kerr, 41 N. Y. 472. The administrator is required to give a bond that he will faithfully execute his trust, and obey all orders of the surrogate touching the administration. Taking all these provisions together, it is apparent that it would be rare that a living person would be seriously harmed by administration upon his estate. But it is otherwise with persons who deal with those who are thus clothed as administrator with the conclusive evidence of authority. This defendant, when called upon by the first administrator, could not resist payment, even if it had been practicable for it to ascertain that Divine was then living, and whether he was dead or alive was an issue which it would not have been permitted to litigate: Prosser v. Wagner, 87 E. C. L. R. 287, and note; Belden v. Meeker, 47 N. Y. 307; Parham v. Moran, 4 How. 717; Wms. on Exrs. 492. As my conclusion in this case is based upon the construction of the statutes of this state, regulating the jurisdiction and proceedings of surrogate courts, decisions from other states made under statutes not the same can furnish us little aid. But the following authorities tend somewhat to sustain the conclusion I have reached: Bumstead v. Read, 31 Barb. C. C. 1; Bolton v. Brewster, 32 Id. 389; Monell v. Dennison, 8 Abb. 401; Halcomb v. Phelps, 16 Conn. 127; Raborg v. Hammond, 2 Har. & G. 42; Parham v. Moran, supra. There is a dictum, adverse to my conclusion, in Allen v. Dundas 3 Term Rep. 125; and also in Griffith v. Frazier, 8 Cranch 9. In Jochumsen v. Suffolk Saviags Bank, 3 Allen 87, the precise question involved in this case, of the payment by the savings bank to an administrator of a depositor, appointed in his lifetime, was decided under the Massachusetts statutes, adversely to the views I have expressed. It was held that the depositor could recover, notwithstanding the prior payment by the bank to the administrator. In Bolton v. Jacks, 6 Robt. 166, there is a learned discussion of the question of the jurisdiction of courts, and it was there held that if a surrogate admitted to probate a will of a testator, not at the time of his death an inhabitant of this country, he acted without jurisdiction, and that his proceedings were void and could be attached collaterally. I believe the decision to be unsound in this respect. A further criticism of cases to which our attention has been called, would not be useful. The question for our decision is not free from doubt. A decision either way would be confronted with some authority, and meet with some logical difficulties. The judgment must be reversed, and a new trial granted, costs to abide event. The decision in this case is probably without a precedent, either in English or American jurisprudence, and the argument of the learned judge on the question of policy, that as attempts to administer upon the estates of living persons are likely to be rare, it is better such persons, having been adjudged to be dead, should be so treated, than that the numerous acts of their quasi representatives should be held void, might be apt to remind dissenting readers of the memorable instance of the high priest, who counselled that it was better for one innocent man to be put to death than that the whole nation should be kept in up the same conclusive presumptions in favor of their jurisdiction, which we apply to the superior courts of a state or nation, and to superior courts of record of general jurisdiction. This presumption, within certain limits, would, no doubt, prove salutary. There is no very good reason why the jurisdiction of courts of probate, so far as it depends upon domicile within a particular district within the state, should be allowed to be attacked collaterally and all the proceedings rendered nugatory. But the decisions to this extent are very numerous, and have never been questioned to our knowledge: Cuth v. Harkins, 9 Mass. 543; Wales v. Willard, 2 Id. 120; Holyoke v. Harkins, 9 Pick. 259; s. c., 5 Id. 20; Ex parte Backer, 2 Leigh 719. And it has even been held that the same consequences will follow where a stranger is appointed administrator, without it appearing that there was no next of kin who might have been appointed Langworthy v. Baker, 23 Ill. 484. Some of the decisions professedly going upon this view may have misapplied the principles, and all of them proceed upon grounds more or less techninical. But when the rule of the conclusiveness of the records of probate courts comes to be applied, not only to questions of jurisdiction, a class of cases to which, to that extent, it never has been before applied at all, but to be extended also to a case, where no court could possibly obtain jurisdiction over the subject-matter, the very casus belli, or contingency upon which the jurisdiction attaches not having yet transpired, we may, as it seems to us, well demand some more compelling reasons for the extension than any presented by the learned judge in the principal case. There is probably no rule of law more unquestionable than that courts of special and limited jurisdiction must set forth upon their judgments all the facts upon which the jurisdiction of the courts depend, or such judgments will be absolutely void, upon the very face of the proceeding. The cases upon this point are too numerous to be cited, and there is no conflict among them. Many of them, both English and American will be found in the notes to Crepps v. Durden, 1 Smith's Lead. Cas. 978 et seq. And the rule is the same in regard to courts of general jurisdiction, where the want of jurisdiction appears upon the face of the record; but the mere omission to state, in the record of such courts, all the facts constituting the jurisdiction, may be supplied by intendment or presumption, which cannot be done in the case of courts of special and limited jurisdiction: Peacock v. Bill, 1 Saund. 73; Grignon v. Astor, 2 How. (U. S.) 319; Huntington v. Charlotte, 15 Vt. 46; State v. Kimborough, 2 Dev. 431. And there is another important dis tinction between courts of superior and general jurisdiction and those whose jurisdiction is special and limited, that in the latter case the jurisdiction may be attacked and defeated in any collateral proceeding, by showing that, although the court determined the facts constituting its jurisdiction, duly set them forth upon the proceedings, so as to give prima facie jurisdiction, yet this was founded in error and mistake of the court; while as to the former class of courts, the jurisdiction will not only be presumed, in the absence of any recital in the record of the facts necessary to give jurisdiction, but this presumption is one of the class of conclusive presumptions, presumptiones juris et de jure, so that no evidence can be received to disprove it: Borden v. Fitch, 15 Johns. 121; Denning v. Corwin, 11 Wend. 647. There is no end to the cases, all in one direction, in favor of the above proposition. And even where superior courts of general jurisdiction exercise a special, limited, statutory power, the same rule is applied to their proceedings as to courts of special and limited jurisdiction: Denning v. Corwin, supra; Sharp v. Speir, 4 Hill 76; Striker v. Kelly, 7 Hill 11. There may be some uncertainty in separating these two classes of courts in some cases, but there is no controversy, we believe, or has been none hitherto, that courts of probate, whose jurisdiction is created and defined by statute, for the settlement of estates, within particular defined districts, must be regarded both as inferior courts and of special and limited jurisdiction, and that no presumption could be made in favor of their jurisdiction beyond what appeared on the face of their proceedings, and that, even where that appeared regular, it might be contradicted in any collateral proceeding and the whole action of the court rendered nugatory and void for all purposes. But when we come to find all this ignored and set aside by one of the ablest courts in the country, and the opposite views maintained and applied to a state of facts where no court could possibly obtain jurisdiction any more than it could obtain jurisdiction of one who was never born, or had already deceased, we must confess to a new sense of the uncertainty of the law. We rejoice that there is still some authority in the opposite direction in the decision of the Supreme Judicial Court of Massachusetts, in the very able opinion of Mr. Justice DEWEY, in Jockumsen v. Suffolk Savings Bank, 3 Allen 87, and in the declarations of other eminent jurists; Chief Justice MARSHALL, in Griffith v. Frazier, 8 Cranch 9; the court in Fisk v. Newell, 9 Texas 13, and in every other case where the question has arisen, until now. It seems to us a matter of some weight that, under the English Statute of 1857, 20 & 21 Vict., chap. 77, by which a court of probate of general jurisdiction. throughout all England, and of the same grade as the superior courts in Westminster Hall, was created, it should still be regarded as a matter not open to debate, that even an administration granted by that court, of the goods or probate of the will, of one still living, is absolutely void, and its effect may be defeated in any collateral proceeding by oral proof. Mr. Horsey, the author of a popular book on Probates and Administrations, p. 157, says: "Neither is a probate conclusive evidence of the death of the testator; and if he be living, the probate is utterly void," I. F. R. Supreme Court of Ohio. WILLIAM BROCK ET AL. v. HENRY E. BATEMAN ET AL. Where a partnership and the several members of the firm are insolvent, and there are no partnership funds for distribution among its creditors, the creditors of the firm are entitled to share equally with the creditors of each partner, in the distribution of his individual assets, the amount so distributed to the creditors of the firm, however, not to exceed the amount of their claims. MOTION for leave to file a petition in error to reverse the judgment of the District Court of Madison county. A. J. Brock and Marion Slaughter were partners dealing in hogs and cattle, and the firm, as well as both partners, became and are still insolvent. Each of the partners, and also the firm, made a general assignment for the benefit of creditors, the defendants in error being the assignees of Brock and also of the firm, and E. G. Coffin being the assignee of Slaughter. The assets of the firm amount to only $6.35, a sum insufficient to pay the costs of administering the trust. The assets of A. J. Brock amount to $27,241.18, and are in the hands of his assignees ready for distribution; and there is also a large amount of assets of Slaughter in the hands, or to come into the hands, of his said assignee. There are numerous creditors of each of the partners and also of the firm. The original petition in this case was filed by the assignees of Brock and of the firm against Brock, Slaughter, the creditors of Brock, the creditors or the firm, and the assignee of Slaughter, setting forth the facts aforesaid, and praying the court to make such order as to marshalling and distributing the funds so in their hands as equity and justice require. The defendants waived the issuing and service of process, and by their written agreement submitted the cause to the court "upon the facts so stated in the petition, and without further answer on their part." The cause was accordingly heard in the Common Pleas upon the petition alone, and was taken by appeal to the District Court, where the defendants made a motion for leave to file an answer and cross-petition, controverting material facts stated in the petition. This motion the court overruled, and on the hearing rendered a decree to the effect that the creditors of the firm should share equally with the individual creditors of each member of the firm in the distribution of the individual assets. The individual creditors of Brock now ask leave to file a petition in error to reverse the judgment of the District Court, alleging that the court erred in overruling their motion for leave to file the answer and cross-petition, and also in adjudging that any part of the individual assets should be distributed to the creditors of the firm, until after the individual creditors should be paid in full. Winans, Darlington & Smith, with whom were also Wilson & Durflinger, for the motion. George Lincoln and Harrison & Marsh, contrà. WELCH, J.-Motions for leave to amend or change the pleadings, in appealed cases in the District Court, are addressed to the sound discretion of the court, and its rulings thereon will not be reversed on error, except where all the facts bearing upon the motion are set forth, and where there has been a manifest abuse of discretion. No such case is made here. For aught that appears there may have been good reasons for refusing the motion. Apparently the granting of the motion would have necessitated |