(108 A.)

H. E. Hall, of Damariscotta, and A. S. Lit- in the letter, the defendant came to South tlefield, of Rockland, for plaintiffs. Bristol and had an interview with the plain

Carl M. P. Larrabee, of Wiscasset, for tiff, Webster Kelsey. At this interview the defendant.

The plaintiff, owning a lot of lumber land in South Bristol, sold to one W. A. Cole the stumpage of all the soft wood lumber on the lot suitable for sawing, and also granted to him the right to set up on the land and operate a portable sawmill. Cole transferred his rights to the defendant, who constructed This issue was submitted to a jury. The a mill and cut and sawed the soft wood lum- testimony showed that the plaintiffs had ber on the plaintiff's lot and, on three neigh-cleared the lot, that they cut 7 cords themboring lots, the lumber on which he had acquired from others.

[2] The letter and acceptance constituted The plaintiffs accepted this offer and so no- a license to cut trees. The licensee did not tified Couture. cut the trees; therefore the title did not pass. After the acceptance of the offer contained There was no sale. Erskine v. Savage, 96

Me. 57, 51 Atl. 242; Stearns v. Washburn, 7 | were cut the jury were not manifestly in Gray (Mass.) 188.

error.

Motion overruled.

After the contract was modified, it present- Moreover, this point, not having been raised no semblance of sale. There was no pass-ed at nisi prius, must be held waived. ing of title and none was intended. The property in and possession of the growth remained in the plaintiffs. The transaction related to the clearing of land and not to the sale of wood.

(118 Me. 312)

HIGGINS v. SMITH.

1919.)

CLOSURE NOTICE; SUFFICIENCY OF CERTIFI-
CATE.

[3] But it is the opinion of the court that the defendant has waived this objection. The case was fully tried on its merits. The real (Supreme Judicial Court of Maine. Nov. 13, issue between the parties was submitted to the court and jury. No evidence offered by MORTGAGES 356-PUBLICATION OF FOREeither party was objected to by reason of the form of the declaration. No claim of variance was set up until after verdict rendered. Neither party has been prejudiced by any looseness or irregularity in the pleading. Not prima facie indeed, but upon production of evidence showing the issue which was in fact tried and determined, the judgment in this case will bar a further action for the cause actually litigated. Rogers v. Libbey, 35 Me. 202; Sturtevant v. Randall, 53 Me. 153; Walker v. Chase, 53 Me. 260; Lander v. Arno, 65 Me. 28.

See, also, Whiting v. Burger, 78 Me. 296, 4 Atl. 694; City Club v. Howes, 92 Me, 214, 42 Atl. 392; Cowan v. Bucksport, 98 Me. 308, 56 Atl. 901; Shepherd v. Railroad Co., 112 Me. 353, 92 Atl. 189; Coan v. Auburn Water Com'rs, 109 Me. 312, 84 Atl. 145.

[4] The defendant sets up the further claim that the evidence does not show the cutting of 40 cords of "hard" wood as claimed in the account annexed.

This objection does not go to the merits, inasmuch as the letter of November 16th does not specify hard wood. The evidence proves the cutting of, 45 cords of wood only in small part soft.

In this finding that 40 cords of hard wood

Proceedings for foreclosure of property in W. county were null and void, where the register of deeds' record read, "I hereby certify the foregoing notice has been published * in a newspaper called the Machias Republican, in the county of W."; the certificate failing to show that the newspaper was "published and printed in whole or in part in the county where the premises are situated."

Report from Supreme Judicial Court, Washington County, at Law.

Action by Ernest E. Higgins against Eva Smith. Hearing on report upon agreed statement of facts. Plaintiff nonsuited.

Argued before CORNISH, C. J., and HAN-
SON, PHILBROOK, DUNN, MORRILL, and
DEASY, JJ.

Gray & Sawyer, of Milbridge, for plaintiff.
R. J. McGarrigle, of Calais, for defendant.

PHILBROOK, J. This is an action of forcible entry and detainer, coming to this court on an agreed statement of facts. Counsel on both sides, in argument, have traveled slightly beyond the boundaries of the agreed statement, but we must be limited to the record.

of the case appears to be as follows: The title to the premises was originally in Fred P. Smith. He died March 7, 1913, leaving a widow, the defendant in this action, and three minor children. On October 12, 1913, this defendant caused the buildings to be insured in her own name. On November 10, 1913, the dwelling house was destroyed by fire, and in 1914 the defendant built the dwelling house now upon the lot. On March 8, 1915, the defendant mortgaged the lot and buildings thereon, with the usual covenants of warranty, purporting to convey the whole title, to Edgar Small. This mortgage was duly recorded. On November 19, 1915, this mortgage, and the debt thereby secured, were assigned by Small to the plaintiff, which assignment was duly recorded. The mortgage was foreclosed February 3, 1917, by publication.

According to that record, the chronology

The notice of foreclosure was forwarded to

(108 A.)

the register of deeds, who made the following | 4. COSTS 255-PRINTING OF RECORD; ALrecord:

"County of Washington-ss.: Machias, Maine, March 2, 1917. I hereby certify that the fore going notice has been published three weeks successively in a newspaper called the Machias Republican, in the county of Washington, the first publication bearing date the third day of February, 1917, and the last publication bearing date of the seventeenth day of February, 1917, and that the same was entered for record on the second day of March, 1917."

Thus it will be observed that the certificate failed to show that the newspaper was "published and printed in whole or in part in the county where the premises are situated." The defendant says this omission makes the foreclosure proceedings fatally defective. The plaintiff says that the omission may be cured by a deposition from the register of deeds to the effect that the omission was inadvertent. The printed record contains no such deposition, nor is there anything in the record to show that such a deposition is properly before us. Since a defective record is not notice in cases of foreclosure by publication, it must follow that as the case now stands before us, the foreclosure precedings are null and void. Stafford v. Morse, 97 Me. 222, 54 Atl. 397; Bragdon v. Hatch, 77 Me. 433, 1 Atl. 140; Hollis v. Hollis, 84 Me. 96, 24 Atl. 581; Savings Bank v. Lancey, 93 Me. 422, 45 Atl. 523, 74 Am. St. Rep. 361; Wyman v. Porter, 108 Me. 110, 79 Atl. 371.

Plaintiff nonsuit.

(118 Me. 321)

REED v. REED.

(Supreme Judicial Court of Maine. Nov. 18, 1919.)

1. COSTS 172-ATTORNEY FEES; AFTER FOUR TRIALS OF CASE.

Under schedule of fees adopted under rule of court giving plaintiff prevailing in law court "one attorney's fee in addition to that embraced in his writ," plaintiff who prevailed after case had been before court four times was entitled to but one attorney's fee, and not to one for each of the four terms the case was in the law court.

2. APPEAL AND ERROR 641 STENOGRAPHER'S TRANSCRIPT; FAILURE OF CLERK TO CERTIFY.

Lack of proper certification of printed copies of stenographer's transcript by clerk of county where case was tried did not deprive law court of jurisdiction, being merely a clerical defect.

3. EVIDENCE

43(2)-JUDICIAL NOTICE; DE

CISIONS IN SAME CASE.

On exceptions to taxation of costs, appellate court cannot shut its eyes to its own decisions and records in the main case.

LOWANCE FOR, THOUGH NOT CERTIFIED.

Where printed record had passed through law court twice, once as the foundation of argument by plaintiff as the moving party, and once as basis of argument by defendant as the moving party, cost of printing will be allowed notwithstanding that record was not certified by clerk of county where cause was tried.

CORNISH, C. J. On plaintiff's exceptions to taxation of costs. The situation is this, as appears by the bill of exceptions: Plaintiff's costs were taxed in the first instance by the clerk of courts of Lincoln county, where the action was pending, and amounted to $130.14 in the Supreme Judicial Court and $261.70 in the law court, an aggregate of $391.84.

From that taxation the defendant appealed to the court at nisi prius. R. S. c. 87, § 158. The court revised the taxation, allowing the taxation of $130.14 in the Supreme Judicial Court, but reducing the taxation in the law court from $261.70 to $71.70, a reduction of $190, and leaving a total of $201.84.

[1] The presiding justice states in his finding as follows:

"On defendant's appeal from taxation of costs in the within action by the clerk, I have allowed the within items and disallowed all other items taxed by the clerk, and parts of items except as allowed within."

A comparison of the items as allowed by the clerk and as allowed by the court shows two changes only, and they occur in the law court items. The clerk allows $10 as attorney fee, while the court allows $2.50. The court's taxation is correct. The clerk evidently allowed $2.50 for each of the four terms the case was in the law court, while the schedule of fees adopted under rule of court provides that in the law court, "if the plaintiff prevails, he may tax one attorney's fee in addition to that embraced in his writ." This reduction of $7.50 therefore should be allowed.

The other change is the change of the item of, "Printing and copies, $224.50," in the clerk's taxation, to, "Stenographer's bill, $42,"

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in the court's taxation, a reduction of $182.- [ fendant called attention to the lack of proper 50. The item as stated by the clerk included certification at the time this case was arstenographer's bill for transcribing evidence, and the printing bill in preparing copies for the law court. The court allows the former $42 and disallows the other part of the item, the printing, amounting to $182.50.

The ground on which the printing bill was disallowed is thus stated in the exceptions: "The stenographer's transcript has never been filed in the Lincoln county court, nor was the case ever certified by the clerk of that court, and no copy of the law court case was ever there."

The defendant relies upon this provision in the schedule of fees established by the court, viz.:

"Transcript of cases made by the official stenographer and printed copies, certified by the clerks to the law court may be taxed for in the bill of costs at the rate actually paid to the stenographers for transcripts, not exceeding the rate established by statute, and at the rate actually paid to the printers for the printing, not exceeding, however, ninety cents per page for pages averaging two hundred and forty words each (exclusive of initials 'Q' and 'A,' for 'Question' and 'Answer') together with compensation to the clerks for preparing manuscripts for the printer when necessary, and for correcting proof and certifying, at the rate of ten cents per printed page, for pages averaging two hundred and forty words each. If a party prints his own case, there may be taxed, also, compensation paid to the clerk for copies for the printer of writs, pleadings and exhibits which are in his official custody, but not of the transcript of the testimony." Amendment to Schedule of Fees, 110 Me. 544, 88 Atl. vii.

The facts are meagerly stated in the bill of exceptions, but it contains enough to disclose that the court declined to allow the printing bill because the stenographer's transcript was not filed in the office of the clerk of court of Lincoln county and the proof was not read and the printed case not certified by that clerk to the law court.

There can be no doubt that the proper course to be followed in preparing printed copies for the law court is that prescribed in the schedule of fees. The stenographer's transcript of the evidence should be filed in the clerk's office of the county where the cause is tried, and, whether the case is printed under the immediate supervision of the clerk or by the party himself, the printed copies should be certified by the clerk to the law court. That is the practice. No other clerk can properly certify the record. But it is common knowledge that not infrequently, through oversight or otherwise, the printed copies lack the proper certification, and when the law court discovers that fact, or it is called to their attention, the case is not dismissed from the docket, nor even are the arguments suspended, but the omission is subsequently supplied.

gued in the law court in July, 1918, the clerical defect could and would have been remedied. But the court did not discover it. It was, however, merely a clerical defect. The court still had jurisdiction of the cause and of the parties. Counsel on both sides argued the cause fully and the court entertained and decided the case. Reed v. Reed, 117 Me. 579, 105 Atl. 892. After an adverse decision, we think it is too late, under the circumstances as stated, for the defendant to ask to be relieved of the payment of a bill actually paid by the plaintiff in printing the testimony which formed the very basis of the defendant's argument in the law court.

[3] But this is not all. This court cannot shut its eyes to its own decisions and records in a matter of this kind. From the decision of this case, 117 Me. 579, 105 Atl. 892, detailing the history of this litigation, it appears that at the third trial of this protracted case a verdict was rendered in favor of the defendant, and the case was brought to this court on plaintiff's motion for new trial. The record was printed and the cause argued at the Portland term of the law court, 1917. Decision was rendered sustaining the motion and granting a new trial. Reed v. Reed, 117 Me. 281, 104 Atl. 227. The case then came on for the fourth trial at the October term, 1918. Lincoln county. "At that trial, by agreement of counsel, the evidence taken at the third trial was used as the evidence in the fourth." That is, the printed record which had been prepared and paid for by the plaintiff after the third trial was adopted and used as the record of the fourth trial without change. This saved the defendant the expense of printing anew and furnished the basis of the defendant's argument in presenting the case to the law court. Without it the defendant could not have argued in the law court, the presiding justice having ordered a verdict for plaintiff. It is the printing bill for that record to which the defendant now objects. That record was not certified by the clerk of court of Lincoln county, but through some mistake or oversight was certified by the clerk of court of Cumberland county, who was also the clerk of the law court. The error was not called to the attention of the court in 1917. If it had been, it could and would have been corrected. But both parties accepted it and argued from it, and on it the decision was rendered. Then after the fourth trial this same wrongly certified record was used by the defendant as the basis of his argument to the law court, and again the mistake in certification was not discovered, and again the decision of this court was rendered and final judgment ordered.

[4] To raise the point for the first time on the taxation of costs after the record had passed through the law court twice, once as

(108 A.)

moving party, and once as the basis of the | from time to time advanced money to her defendant's argument as the moving party, does not appeal to us with sufficient force to warrant the disallowance of the expense of printing which was actually paid by the plaintiff.

The plaintiff's bill of costs as taxed by the clerk, $391.84, reduced by $7.50 the error in the attorney's fee, leaving a balance of $384.34, will stand as the correct taxation. Exceptions sustained.

husband to be used in the construction, alteration, and repairs of certain buildings which he was erecting on land the title to which was in the defendants jointly, in all amounting to $1,229.60; that the plaintiff advanced the several amounts with the expectation of having a home for themselves; that after completing the house her husband abused and mistreated her and finally left her,, returning to his father's house, and refused longer to

Bill of costs to be corrected in accordance live with her or return the money she had with opinion.

(118 Me. 337)

WALBRIDGE v. WALBRIDGE et al. (Supreme Judicial Court of Maine. Nov. 20, 1919.)

1. HUSBAND AND WIFE 43-ACTIONS BETWEEN TO RECOVER MONEY ADVANCED.

advanced, and, with intent to defraud her of the moneys so advanced, mortgaged the buildings and his interest in the land to his father, the other defendant, to secure an alleged indebtedness of $3,324, and which, the evidence discloses, was for board of the defendant George P. Walbridge and the plaintiff while they were living with the father after their marriage.

The defendants contended that the money was a gift or a contribution by the wife in the usual course of domestic relations, and for their mutual benefit and with no expectation of return, and that no obligation between hus

Rev. St. c. 66, § 6, was only intended by the Legislature to provide an adjustment of financial relations between husband and wife when property is intrusted or advanced by one to the other under conditions that it is ap-band and wife similar to that of debtor and parent that it was regarded, not as a joint or creditor was thereby created. common interest or as a gift, but as separate property of the party advancing it for which the recipient was expected, and ought in equity and good conscience, to account. 2. APPEAL AND ERROR FINDINGS IN EQUITY.

[1] If such were the facts, we think section 6, c. 66, R. S., was not intended to apply. Stone v. Curtis, 115 Me. 63, 97 Atl. 213. It could not have been the intent of the Legisla1009 (7)-REVIEW OF ture, we think, to provide for the adjustment of all the financial relations between husband and wife under this statute. No end of litigation would arise, and domestic infelicities be increased tenfold.

The findings of fact of a single justice sitting in equity will not be disturbed unless clearly wrong.

But only when property is intrusted or ad

Appeal from Supreme Judicial Court, Ken- vanced by one to the other under conditions nebec County, at Law.

Bill by Lenora M. Walbridge against George P. Walbridge and another. From decree of the sitting justice for plaintiff, defendants appeal. Appeal dismissed, and decree affirmed.

that it is apparent that it was regarded not as a joint or common interest or as a gift, but as separate property of the party advancing it, for which the recipient was expected, and ought in equity and good conscience, to account, may this remedy be invoked. Greenwood v. Greenwood, 113 Me. 227, 93 Atl. 360;

Argued before SPEAR, HANSON, DUNN, Whiting v. Whiting, 114 Me. 383, 93 Atl. 500; WILSON, and DEASY, JJ.

Benedict F. Maher, of Augusta, for appellants.

Stone v. Curtis, 115 Me. 63, 97 Atl. 213.
In the case at bar, however, the sitting
justice found that the evidence sustained the

George W. Heselton, of Gardiner, for ap- plaintiff's bill, that the plaintiff was entitled pellee.

WILSON, J. A bill in equity brought by the plaintiff against her husband, George P. Walbridge, and her father-in-law, James P. Walbridge, under section 6 of chapter 66, R. S., to recover money received from her by her husband which she claims that in equity and good conscience he ought to return, and to declare void as to the plaintiff a mortgage given by the husband to his father. It comes before this court on appeal from the decree of the sitting justice.

to judgment against the defendant George P. Walbridge for the sum of $1,229.60, and that the mortgage given to James P. Walbridge was fraudulent and void as to the plaintiff.

[2] We may not disturb the findings of fact of a single justice sitting in equity unless they are clearly wrong. Stewart v. Gilbert, 115 Me. 262, 98 Atl. 752. Each case of this nature must be determined by itself. It is the intent of the parties that must govern, and we cannot say that the findings in this case were clearly wrong.

Entry will be: Appeal dismissed; decree of

It is alleged in the bill that the plaintiff sitting justice affirmed.

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