Guyton v. Flack

Ecclesto-n, J., delivered the opinion ©f this court. This appeal'is upon-two orders, one granting an injunction and the other appointing a receiver. Although an- answer has been filed and appears in-the- record, still it is not to be considered by us in deciding the questions arising on this appeal, but we are confined to the case as made by the bill. This principle was established in Wagner & Marshall, vs. Cohen, 6 Gill, 97 .

There the chancellor granted an injunction upon-a petition; the answer was filed and the appeal was taken from-the-order granting the injunction. After an argument insisting, it was the duty of the court to examine the answer, they refused to do so, holding that under the third section of the act of 1835, ch. 380, they could not' Took to the answer, in reviewing the order of the chancellory and confined themselves to the petition in ascertaining whether the injunction had been properly granted. .The section of the act referred to relates only to injunctions, but the second section of chapter 346; passed the same year, makes provision in reference to the appointment of receivers as well as the granting of injunctions; and the two sections correspond- with each other in providing for' appeals- and the filing of answers. The correspondence is so perfect that we consider- the case of Wagner & Marshall, vs. Cohen, as fullsettling the question in- regard to the present answer. In that case the- answer was filed after the injunction had'been granted, and here it was filed after the order directing the injunction and" subsequent to the appointment of the receiver.

The next inquiry is, does the bill state such a case as authorized the orders appealed from; To do that it must aver that a partnership existed between the brothers, William ⁴⁰³ and James Guyton. For if there was no such partnership, the complainant is not entitled to the relief sought by him. Partners themselves have a lien upon partnership effects for the discharge of the debits of the firm, (where they have not parted with it,) which lien may he made available for the benefit of the creditors. But the equities of the creditors are to be worked out through the medium of the partners.

The creditors have not a lien, but a quasi lien upon the partnership effects, which, as a derivative subordinate right, through the lien and equity of the partners, may be enforced in a court of equity. Story on Partnership, secs. 360 to 362, inclusive. In Ex-parte Kendall, 17 Ves., 526, Lord Eldon said: “In all these cases of distribution of joint effects, it is by