Gilmore v. Gilmore , 40 Me. 50 ( 1855 )

Rice, J.

This case is now before us on exceptions to the master’s report.

At the original hearing of the case in Penobscot County, the question of fraud and collusion between Martin Gilmore and Patterson, was distinctly before the Court, and all the evidence which the parties produced, bearing upon that question,^ considered by the Court. As the law then stood, the Judge before whom the trial was had, was authorized to decide all matters of fact arising in the case. The burden of proof to establish fraud was upon the party alleging it. The evidence introduced at that time failed to satisfy the Court of the existence of fraud and collusion between Martin Gilmore and Patterson. The charge was therefore repelled. This Court have held that the decision of the Judge upon that point was conclusive. 36 Maine, 544. That question cannot, therefore, be reexamined unless it be upon a rehearing by the Court, duly granted, for some sufficient cause not heretofore presented.

The question of fraud having been thus settled, the case was sent to a master to determine the amount that was due to Patterson from the late firm of M. & J. C. Gilmore. In this examination the master was not authorized to hear testimony to determine the question whether there was fraud on the part of Patterson and Martin Gilmore, as that question had already been judicially determined.

So far, therefore, as testimony was admitted and considered by the master for that purpose, his action was erroneous. The letters of Martin Gilmore, and certain declarations made by him, and also the books of M. & J. C. Gilmore, appear by the report, to have been admitted solely for this purpose. They should have been rejected.

The declarations of Patterson as to the amount due him from the firm of M. & J. C. Gilmore, made in his answers, not being responsive to the allegations in the bill, were not evidence upon that point. But his answers before the master, when examined as a witness, on oath, were legitimate evidence to be considered by the master. Such, also, is the character of the testimony of J. C. Gilmore. All the depositions used at the trial may be properly referred to by the master, and so far as they tend to show the amount of indebtedness of the firm of M. & J. C. Gilmore to Patterson, may be considered by him.

For the reasons above, the exceptions must be sustained, and the case remanded to the master for further hearing. In his further examination the master will report in full, the evidence produced before him, and his decisions thereon, and if the parties are examined, that examination will be on written interrogatories and answers.

The defendant, Pendleton, refuses to pay to the receiver the amount of his notes, according to the decree of the Court, unless a very considerable portion of the principal and interest, apparently due thereon, shall- be abated, and the receiver asks the direction of the Court.

In his answer, Pendleton professed his readiness, at all times, to pay over the amount of his notes, when he could do so with safety to himself. No claim for abatement from the sum apparently due was then set up by him, nor was there any suggestion in his answer that any portion of said notes had ever been paid, or that the whole amount thereof was not justly due from him.

Under these circumstances, this refusal to pay his note to the receiver, has the appearance of a disposition to palter with the authority of the Court, if not to practice a fraud upon those who are interested in the proceeds of the property in his hands. Such a course cannot be approbated nor permitted. It is therefore decreed that an attachment im•mediately issue from the office of the Clerk of the Courts for Penobscot County, against the said Pendleton, as for a contempt of Court, and that said Pendleton be thereon arrested, and committed to prison, and there detained until he comply with the decree of the Court by paying to the receiver the amount of his notes, both principal and interest, without abatement, together with all costs that may arise by reason of said attachment, or he be discharged from his im•prisonment by order of this Court, or due process of law.

Exceptions to master's report sustained, and case remanded for further hearing.