Haight v. Burr

Bartol, J., delivered the opinion of this Court : This is an appeal from an order of the Circuit Court for Baltimore city, granting an injunction and appointing a receiver. By the 21st sec. of the 5th Art. of the Code of Gen. Laws, the right of appeal from such an order is given, “the answer of the party appealing being first filed in the cause." In. this respect the provisions of the Code are identical with ¹³³ those of tho Act of 1835, cli. 380; and must be construed in tho same way. According to the uniform course of decisions under the Act of 1835, it has been held, that although tho necessity of filing an answer is imposed upon the defendant, as one of the conditions on which his right to appeal depends, yet this Court is confined to the case made by the bill, and does not examine the answer.

Wagner vs. Marshall & Cohen, 6 Gill, 97 . Roman, et al., vs. Strauss, et al., 10 Md. Rep., 89 . McCann vs. Taylor, et al., 10 Md. Rep., 419 . The averments of the bill on this appeal, whatever may be the real state of the case, must be taken as true. 10 Md. Rep., 410 , Rose & Gauss, vs. Bevan, et al. Our duty is to determine whether tho case stated by tho complainant, was one which justified the passage of tho order appealed from.

Without stating here all the averments in the bill, we will briefly refer to those allegations on which the equities of the complainant mainly rest. It is alleged, that in the year 1854, he formed a co-partnership with the respondents, Haight and O’Connell, in the business of making, repairing and selling carriages, in the city of Baltimore, The two partners, Burr and Haight, residing at that time in Bridgeport, Connecticut, it was agreed that O’Connell, the other partner, should give his personal attention to the business, and receive a compensation of $500 per annum therefor. The bill alleges that the partnership was to continue for three years, and that after the expiration of that time, (in 1851,) articles for the renewal thereof were signed by the respondents, but not by the complainant, though he tacitly assented to the continuance of the old partnership till July last past, (July 1861,) as one during the sufferance or pleasure of the co-partners. The bill, after stating that settlements had been made every year, up to July last, and setting out the condition ¹³⁴ •of tlie affairs of the firm at the time of the last settlement, in July 1861, charges “that since that time O’Connell has largely over-drawn all his interest in the concern, and Haight has largely diminished his, while the complainant has received nothingand the bill further charges that the respondent, O’Connell, has carried on the business as . if it was his own, exclusively, denying to the complainant .any settlement or satisfaction, refusing to allow him to have access to the books of the firm; that he has failed to pay the debts of the firm, although he had funds in hand sufficient for the purpose, leaving the complainant liable for .such debts; and the bill further charges that the defendant, O’Connell, is fraudulently appropriating to his own use the funds of the partnership, and that he “threatens, in fraud of the complainant's rights, to sell out the whole