Niven v. Spickerman

12 Johns. 401

Opinion

Per Curiam.

There has been an utter subversion of legal principles in this case.

The return presents ground for many objections, but it is sufficient to say, 1. That the justice committed an error in not allowing the defendant below oyer of the covenant declared on, before he was compelled to plead.

2. This being an unincorporated company, it cannot sue in the name of its trustees.

3. The only remedy by partners against each other, for balances due on partnership account, is by bill in equity, or action of account.

Judgment reversed.

(a)

In Casey v. Brush, (2 Caines’ Rep. 293.) it was decided, that ¿mumpnt will not lie by one partner against the other, for a balance of account, unless upon an express promise to pay. In Moravia v. Levy, Buller, J., held, that assumpsit would lie by one partner against the other, on an express promise to pay the balance of account struck between them, though the articles of copartnership contained a covenant to account at certain times. (3 Term Rep. 483. n. a.)' See, also, Hobart v. Howard, 9 Mass. Rep. 304.