be reviewed; provided, however, it be embodied in the record by bill of exceptions or statement. (McAbee vs. Randall, 41 Cal. 137; Nevada, etc., Co. vs. Ridd, 43 Cal. 180; Morris vs. Angle, 42 Cal. 236; Abbott vs. Douglass, 28 Cal. 295; More vs. Del Valle, 28 Cal. 174; Secs. 950 and 956, Code of Civil Procedure.)

A bill of exceptions is found in the transcript, in which is set out the affidavits upon which the motion to set aside the default was based; but it is objected on the part of the respondents that the bill cannot be considered because of the following facts which appear from the record: A draft of the bill was served on the attorneys for the plaintiffs on the 28th of May, 1879, which was after the appeal from the judgment had been perfected. Plaintiffs' attorneys refused to propose any amendments thereto. On the 12th of June following the bill was presented by counsel for the defendants to the Judge, who allowed it; and on the 21st of the same month it was filed with the Clerk.

The authority for the settlement and filing of bills of exceptions is given by statute, and the time for the performance of those acts is fixed by the same law. Section 650 of the Code of Civil Procedure prescribes the time and manner in which a party may have exceptions taken at a trial settled in a bill of exceptions. The present case clearly does not fall within the provisions of that section.

The next section, 651, provides for the settlement of exceptions to any decision made after judgment. The order here complained of, having been made before judgment, does not come within the provisions of Section 651.

The only other section in the Code of Civil Procedure relating to the settlement of bills of exceptions is Section 649, which, so far as it relates to the question under consideration, is as follows: "A bill containing the exception to any decision may be presented to the Court or Judge for settlement at the time the decision is made, and after having been settled shall be signed by the Judge, and filed with the Clerk."

The bill in the present case was not presented to the Judge, and was not signed by him until twenty-two days after the appeal from the judgment had been perfected. It cannot therefore be considered.

The appeal, then, must be determined upon the judgment roll alone. It is not claimed that any error appears from that, and we have discovered none. Appeal from the order dismissed.

Judgment affirmed.

We concur: McKee, J., McKinstry, J.

MECHANICS' LIEN. Cannot be enforced so as to deprive of his right the person having the general property in the chattels, without making him a party to the foreclosure suit.

Appeal from the District Court of the Twentieth Judicial District, Santa Cruz County.

Coldsby & Cloud, for respondent.

J. A. Barham and A. E. Bolton, for appellants.

MCKINSTRY, J., delivered the opinion of the Court: The action was brought to recover the possession of thresher engine, with boiler and fixtures thereto belonging,"

etc., or its value.

one

The District Court gave judgment in favor of plaintiff for the recovery of the property, or the alternative, and damages for its detention, etc. A new trial was denied, and from the judgment and order denying a new trial defendants have appealed.

June 19, 1876, plaintiff being the owner of the engine and boiler the whole mounted upon wheels-executed to one Woods a written "lease," by the terms of which Woods was to have the use of the property for a period of six months, Woods to pay $100 per month rent; and if at the end of the six months all the payments, amounting to $600, should be made, plaintiff was to execute to Woods a bill of sale of the property. Under this agreement Woods took possession of the engine and boiler, and placed them near his saw-mill, and "Adams Tract" of land, then under lease by him. In using the engine it was taken off from the wheels, and the axles were firmly bolted to large timbers, and these were bedded in the soil. The boiler and engine were all part of the same machinery, and had been supported on the same set of wheels. When the boiler was in place, it was partly supported by masonry built up from the soil, from the engine belts connected with the machinery in the mill, a distance of about 100 feet, and the engine was used to drive the machinery.

Woods paid two months' rent and no more. While the property was in the possession of Wood, as aforesaid, he caused repairs to the amount of $30 to be made upon the engine and boiler, and at the same time other repairs to be made upon his saw-mill by the same machinists. The latterGregg and Philes were not paid, and filed a mechanics' lien upon the whole of the property for all their claim. Thereafter an action was commenced by the mechanics to foreclose said lien. March, the plaintiff, was not made a party to said action, nor did he appear therein. Judgment was rendered foreclosing said lien, and under this judgment the whole of said property on which said lien had been taken was sold by the Sheriff of Santa Cruz County upon the 16th day of March, 1877, to B. F. Porter.

The following is a description of the property decreed to be sold: "The planing mill connected with, or contiguous to, what is known as the McKoy & Hubbard Saw-mill, situated and lying on or near the road leading from Felton, in the County of Santa Cruz, State of California, to Lorenzo, in said county and State; said mill also lying and being on or near what is known as the San Lorenzo Flume; also being and lying in the County of Santa Cruz and State of California.'

There was no decree for the sale, nor was there any sale of "the land on which the building, improvement, or structure" repaired was constructed, or of any land required for the convenient use thereof.

Woods was not the owner of the property in controversy when the repairs upon it were made. Assuming that the provisions of the Code which treats of the liens of mechanics give a lien upon personal property for repairs by mechanics who do not take possession of such property-a point which we do not decide-it would seem very clear that such liens cannot be enforced so as to deprive of his right the person having the general property in the chattels without making him a party to the foreclosure suit. Plaintiff was the owner. Even if the special property of Woods, acquired under his contract with plaintiff, was subject to sale under the decree in the suit brought by Gregg and Philes to foreclose their alleged lien, and could have been sold during the term of the lease, the purchaser could only have acquired such interest as Woods had to wit, the right to use for the balance of the six months' term, with the privilege of taking the property if the six months' rent was paid in full. As we have seen, Woods paid but two months' rent. It does not appear that Porter paid any-indeed, he acquired no right to pay any

rent since the term of the lease had long expired when he purchased.

It follows that plaintiff was not deprived of the right to the immediate possession of the property sold by reason of the alleged foreclosure of a mechanics' lien and sale to Porter.

Subsequent to the repairs done upon the machinery, Woods, in consideration of a past indebtedness, executed to H. C. Chace a bill of sale of the engine and boiler. The Court finds, however, that when Chace purchased he knew that Woods was owing plaintiff upon the engine, etc., and was informed that plaintiff claimed a lien of some kind thereon for this debt. "Chace made no further inquiry to ascertain the character or situation of the transaction between March and Woods."

We cannot say that this finding was not sustained by the evidence. Chace did not buy, nor did Woods purport to sell, any interest in the real estate.

Whatever might be the law applicable to the facts, in case Woods had attached the machinery to his own land, and then sold the land and machinery attached to an innocent party, it is plain that as between plaintiff and Woods, and as between plaintiff and any purchaser of the personal property simply from Woods (with or without notice of the rights of plaintiff as the real owner), the engine and boiler were to be treated as personal property, and were recoverable in this

action.

Judgment and order affirmed.

We concur: McKee, J., Ross, J

DEPARTMENT No. 2.

[Filed September 30, 1880.]
No. 10,511.

THE PEOPLE, RESPONDENT,

VS.

MICHAEL WELCH, APPELLANT.

Appeal from the Superior Court of Inyo County.

Attorney-General Hart, for respondent.

S. P. Moffatt and J. R. Kittrell, for appellant.

By the Court:

The appeal in this case was taken from the order of the Court below denying defendant's motion for new trial. There is no bill of exceptions, no statement, or affidavits in the transcript. The order is therefore affirmed.

DEPARTMENT No. 1.

[Filed October 8, 1880.],
No. 6832.

PHILIP FABIAN ET AL., RESPONDENTS,

VS.

JOHN CALLAHAN, APPELLANT.

MOTION FOR NEW TRIAL. A motion for new trial is defective if it fails to designate whether the motion will be made upon affidavits, or the minutes of the Court, or a bill of exceptions, or a statement of the

case.

PRACTICE-EVIDENCE-OBJECTIONS. Objections to the rulings of the Court upon the admissibility of evidence must be excepted to at the time of the ruling.

IDEM-PUBLICATION OF CERTIFICATE OF PARTNERSHIP. Where the answer denies that the plaintiffs had complied with Section 2466 of the Civil Code respecting the publication of the certificate of partnership, it is not error to admit the certificate in evidence.

OBJECTIONS TO COMPETENT EVIDENCE. To entitle an objection to an offer of competent evidence to notice, it must not only be on a material matter affecting the substantial rights of the parties, but its point must be particularly stated. (Kiler vs. Kimball, 10 Cal. 268; Martin vs. Travis, 12 Id. 243.)

ACKNOWLEDGMENT TO CERTIFICATE OF PARTNERSHIP. No particular form is necessary. An acknowledgment by a Justice of the Peace is sufficient. PAROL TESTIMONY. It is not error to allow parol testimony to prove that the witness was an acting Justice of the Peace at the time of the acknowledgment.

PRACTICE SPECIFICATIONS OF ERRORS. A specification of the particulars in which the evidence was insufficient is an essential part of the statement, and without it there is nothing for the Court to review.

Appeal from the District Court of the Fifth Judicial District, San Joaquin County.

Paterson & McStay, for respondents.

F. T. Baldwin and J. C. Campbell, for appellant.

MCKEE, J., delivered the opinion of the Court:

This was an action to recover the amount of an agreement in writing made by the defendant to the plaintiff for the sum of ten hundred and thirty-seven dollars, with interest thereon at one and a half per cent. per month. Plaintiff had judgment; and from the judgment and an order denying a motion for a new trial comes this appeal.

There are in the record what purports to be a notice of intention to move for a new trial and an engrossed statement.