delivered a separate concurring opinion.
I concur in affirming the judgment of the circuit court dismissing the suit, but only on the ground that the circuit court has no jurisdiction of this action. This conclusion is unavoidable, in view of the decision of the supreme court in Ensworth v. Curd, 68 Mo. 288, which was a case in all respects like the present case, with the single exception that in that case the power of the probate court to sell real estate belonging to the alleged partnership was distinctly invoked; while in this case the plaintiff seeks to work out the ■ same result, by charging what he claims to be due him upon the assets in the hands of the administrator of his alleged co-partner. In other words, in that case the surviving partner sought, by a suit in equity against the administrator of his deceased partner, to attain precisely the same result which is sought in this case, but invoking on the part of the circuit court the exercise of larger powers than are invoked in this case; so that, if no jurisdiction existed in the circuit court in that case, none exists in this case for stronger reasons. See also Caldwell v. Hawkins, 73 Mo. 450. Although this question of jurisdiction has not been raised by either' party, we are none the less bound to take notice of it by our own motion, as it relates to jurisdiction of the subject-matter of the action. As this question of jurisdiction lies at the threshold, I decline to express any opinion as to the merits; although I have no doubt, on looking over the printed arguments, that the same result would be réached on the merits.