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12 Johns. 401

Niven v. Spickerman

New York Supreme Court

Decided October 15, 1815

New York Supreme Court · decided 1815-10-15

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.

Good law ✅— No negative treatment on recordhow we know

Decided 1815-10-15

How this case has been cited

Cited by 3 later decisions — most recently October 1951

3 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Per Curiam.

¶1There has been an utter subversion of legal principles in this case.

¶2The 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.

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

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

¶5Judgment reversed. (a)

¶6 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.

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