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 *403and 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 force of the equities of the partners among themselves that the creditors are paid, and not by force of their own claim upon the assets, for they have none.” See also Glenn vs. Gill, 2 Md. Rep., 15, 16.
If there was no partnership between William and James, and the assets of the estate of the former were held and used by the latter, he might have been sued as executor de son tort in a court of law by the complainant. James was likewise responsible in a court of law, to the administratrix of William, for improperly -withholding from her the assets. We have been furnished with no case which shows that a court of equity will grant relief to a creditor of his deceased debtor, against a party, for improperly interfering with, or retaining and using, the assets of the debtor.
If the brothers were not partners the complainant had no right to an injunction, or to have a receiver appointed. And as we are to look to the bill only, if that does not aver a partnership it is the same as if none existed in fact.
The bill alleges that William Guyton was carrying on trade and commerce in the city of Baltimore, under the name and style of William Guyton & Co.; that he departed this life intestate on or about the 2nd day of September 1854; that since his death James C. Guyton, his brother, and who was employed in his store in his lifetime, claims to have been a *404.partner with William in the said commercial house of William Guyton & Co., but that Frances Guyton, widow of the deceased, and who has obtained letters of administration on his .estate, denies the said partnership, and that the complainant does not know whether or not William and James were CO-partners.
Thus it appears James asserts there was a partnership; the administratrix denies it; and th.e complainant neither asserts or denies it, but says he does not know whether there was or not. Surely it cannot be said there is an averment by the complainant of a partnership, when his statement is that he does not know whether there was one or not, and the assertion by one defendant of its existence is denied by the other.
Upon such a bill we think the injunction should not have been issued, or the receiver appointed. And the consent of the administratrix to the appointment of th.e receiver did not cure the defect of the bill, in not asserting the existence of the partnership.
These views relieve us from any necessity to decide the other questions presented in argument.
Both orders will be reversed, and the bill dismissed without prejudice, and without costs.
Reversed and bill dismissed,