Niven v. Spickerman — 12 Johns. 401

Majority

p. 401

Niven against Spickerman & Stever.

Headnote

In sn aet-on of c™rt! entitiedw3^ caned be<mD to

An unincorpocannotsuein the name of their trustees.

Covenant does 5°)ee'¿een)“ a0" ^mpeithepaydue to the ftom%^oftkc partners'

IN ERROR, on certiorari to a justice’s court.

This was an action of covenant, brought by Spickerman & Stever against the defendant below. The defendant prayed oyer, which was refused by the justice, who told him that he had no right to see the covenant until it was produced on the trial. The defendant then pleaded the general issue, and, after . • i i r • a an adiournment, the cause was tried before a mry. A covenant J . i ■ -t r i i or agreement of partnership, signed by the defendant below, to which he, and the plaintiffs below, and several other persons, were* parties, to dig for a mine, for their joint benefit, was produced. By the agreement, it was stipulated, that the affairs of the company should be conducted by trustees, to be chosen by a majority of the subscribers ; and it appeared that the plaintiffs below were the trustees so appointed. The defendant

p. 402

below had paid all his original subscription money, and the company having been engaged in digging for upwards of two years, without any success, he relinquished all that he had paid, , c , . , and refused to contribute any more.

This suit was brought by the plaintiffs below, as trustees of the company, to compel the defendant to pay a balance due from him to the company, on partnership account. Judgment was given for the plaintiffs, in the court below.

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.^[1]

(a) (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 .