Crooker v. Houghton , 61 Me. 337 ( 1873 )

DiCKERSON, J.

This is a bill of review in equity, founded upon alleged errors on the face of the record of the case of Charles Crooker, in equity, v. William D. Crooker, commenced at the December term of the court, in the county of Sagadahoc, a. d. 1857, and disposed of at the August term, 1872.

The plaintiff and defendant in the original bill w'ore copartners for twenty-nine years next preceding June 19, 1857, when the co-partnership was dissolved; that bill was brought to enforce a settlement of the partnership affairs.

The error is alleged to consist in the omission of the master in the original suit to allow the plaintiff “interest on the balance of @17,808.63, which wuis found due him for money advanced from his individual property, many years before, to pay the debts of the firm,” to which the plaintiff alleges he is entitled.

There being no allegation of the discovery of new matter, the bill can only be sustained upon showing that the errors alleged are apparent upon the face of the record in the report and decretal order of the court founded thereon. Robinson v. Sampson, 26 Maine, 11.

The report of the master shows that he found a portion of the money or securities in the hands of the receiver to be the individual property of the plaintiff, amounting to @17,808.63, and that the accounts of the firm, extending over a period of twenty-nine years, were in such a condition as to render It impracticable to state an interest account, and that, therefore, be did not do so. It will be seen that the report of the master does not state that he did not allow' interest on any of the items going to make up the said sum of @17,808.63, hut that “ lie did not state an interest account.”

Whether the money or securities, found by the master to be the individual property of the plaintiff, were the excess of the plaintiff’s interest in the capital stock of the firm, or were- due him for advances to pay the partnership debts, or were casually in possession of the partners when the partnership was dissolved, or whether they were received by the receiver in specie, or were the avails of other property disposed of by him, or came into his hands inadvertently by virtue of his office as receiver, does not appear from the report. Nor, as we have seen, does it'appear that interest was not allowed upon any or all - the items composing that amount. The phraseology of the report, that “ the money or securities was and still is the individual property of Charles Crook-er,” would seem to indicate that “ the money or securities ” was received and had been kept by the receiver in specie.

If we pass from the report to the defendants’ answer we there have a denial that the sum of $17,808.68 or any other sum was found due by the master to the plaintiff for advancements from his individual property to pay the debts of the firm, as alleged in the bill, and a distinct assertion that the said sum of $17,808.63, found due the plaintiff, included the interest at the time the report was made.

The allegations in the bill are not sustained by the evidence, nor.is there sufficient matter alleged in the parts of the bill demurred to to entitle the plaintiff to review the record and proceedings in the former bill.

Demurrer sustained. Bill dismissed with costs for the defendants.

AppletoN, C. J.; CuttiNg, DaNFORth, Viegin, and Petees, JJ., concurred.