¶1dissenting.
¶2Whether the conveyance be with intent to prefer • one or more creditors within the provisions of section 6343 of the Revised Statutes or with the intent to defraud creditors within the provisions of section 6344, the proceedings to subject are prescribed in the latter section. If the creditor instituting the suit to subject publishes the prescribed notice to creditors of its pendency and object, the common pleas court originally, or the circuit court on appeal, may administer the property for the benefit of the plaintiff and the other creditors who come in pursuant to such notice and comply with the requirements of the section.
¶3If such notice be not given the jurisdiction of the common pleas and circuit courts is restricted to adjudging that the - conveyance is void. The section expressly provides that “if such notice shall not have been given, the said court shall forthwith, on declaring- the intent aforesaid, cause a copy to be certified to the proper probate court, which shall, on its own motion, appoint a trustee as in this chapter provided.” The duty of the trustee with respect to such property is “to administer the same as in other cases of assignments to trustees for the benefit of creditors.”
¶4In this case no notice to other creditors was published by the plaintiff. The circuit court was therefore without jurisdiction to administer the property, or to find the amount due to any creditor. Such finding can be made only in an ad ver*625sary proceeding. If the required notice is given by the plaintiff, the proceeding is adversary. If it be not given the finding must be made in a case in which the trustee appointed by' the probate court represents all creditors except the adverse claimant.
¶5In view of these provisions of the statute • the duty of the circuit court in the case is not determined by the- general jurisdiction of courts of equity. It may not affect the rights of the cred-' itors in this ease, but it seems that the judgment should be so modified that in the administration of the estate the trustee may not be embarrassed by a finding as to the amounts due some of the creditors which the circuit court had no jurisdiction to make.
¶6Judgment affl/rmed.