The respondents made the additional advances thus stipulated on said nineteenth of April, 1882, and received possession of the goods on the arrival of the steamer three days after.

In the meantime, on April 20, 1882, Klingel executed an assignment for the benefit of all his creditors, covering all his property, to the appellant. The appellant afterwards brought this action as such assignee to recover the value of the property, alleging its conversion by the respondents.

The important question arising upon the record before us of the proceedings had in the case in the lower court, is whether the respondents acquired any right to the possession and disposal of the property, as against the appellant, by virtue of their agreement with Klingel and their act of taking possession under it?

Their agreement with Klingel was a valid one beyond question, and had no assignment been made by him their right to retain the property or dispose of it for non-payment of their claim against him, after obtaining possession, could not be disputed: Parshall et al. v. Eggert, 54 N. Y. 18.

But we are unable to discover wherein the rights of the assignee with relation to the property in such cases are either greater or different than previously belonged to the assignor.

He takes the legal title, nothing more, and acquires just such rights in the property as his assignor had and none other.

There is nothing in our assignment act indicating any such difference, and it certainly cannot be sustained on common law principles: Sess. L. 1878; Lempriere v. Pasley, 2 T. R. 485. This case indeed is directly in point and decisive of the one under consideration. The judgment of the circuit court must be affirmed.

NORTHERN PACIFIC TERMINAL Co. v. LoWENBERG, ET AL.

Filed March 18, 1884.

AN UNDERTAKING ON APPEAL MUST BE FILED WITHIN TEN DAYS from the time of the service of the notice of appeal. If filed on the eleventh day, the appeal will be dismissed. THE ASSIGNMENT OF ERRORS IN A NOTICE OF APPEAL must be specific. It is not sufficient to state generally, that the errors relied on consisted in admitting or excluding testimony as shown by the bill of exceptions.

APPEAL from a judgment of the circuit court for Multnomah county. The opinion states the facts.

Fechheimer & Ach, for the appellant.

Joseph Simon, for the respondent.

WATSON, C. J. This is a motion to dismiss the appeal upon the grounds:

1. The notice of appeal was not served and filed in the lower court within the time allowed by the statute providing the mode of taking appeals to this court.

2. The undertaking for the appeal was not given within the period prescribed by such statute.

3. There is no assignment of errors in the notice of appeal.

The transcript shows that the judgment attempted to be brought here for review, was entered August 15, 1883, and that the notice of appeal was served on February 14, 1884, but not filed in the lower court until the day following.

The notice of appeal, however, describes the judgment as having been made and entered August 14, 1883, but the description given in the notice is otherwise sufficient to fully identify the judgment and demonstrate the mistake as to the date of its entry.

The undertaking appears not to have been filed until February 25, 1884.

The only assignments of error in the notice of appeal, are that the court below erred:

1. In admitting certain testimony as is fully stated in the bill of exceptions herein filed.

2. In excluding certain testimony as is fully stated in said bill of exceptions.

The statute requires the undertaking for appeal to be filed with the clerk of the court, from whose decision the appeal is sought, within ten days from the service of the notice: Civil Code 527.

It is plain that this provision was not complied with in this instance. The ten days expired on February 24, 1884, while the undertaking was not filed until the day after. And the objection to the sufficiency of the assignments of error is also well founded.

The particular errors relied upon must be specified. This has so often been ruled by this court that no further examination of the principle seems necessary: State of Oregon v. McKinnon, 8 Or. 485. It is clearly not sufficient to assign error generally in admitting or excluding testimony, as shown by the bill of exceptions.

The first ground stated in the motion to dismiss is obviated by an inspection of the record itself.

From that the service and filing of the notice of appeal appears to have taken place within the time prescribed by the statute.

But upon both the second and third grounds the motion to dismiss must be sustained.

The appeal is dismissed.

MCGUIRE ET AL. v. LOGUS ET AL.

Filed March 26, 1884.

MECHANICS' LIEN.-Evidence held sufficient to sustain the findings.

APPEAL from a judgment of the circuit court for Multnomah county. The opinion states the facts.

W. T. Burney, for the appellants.

W. H. Adams, for the respondents.

LORD, J. This is a suit brought to enforce a lien under the provisions of the act of the legislature of 1874, entitled, "An act to provide for liens of mechanics, laborers, material-men and others, and prescribing the manner of their enforcement." The plaintiffs, H. D. & H. P. McGuire, claim a lien as sub-contractors for painting in and about the construction of a building by defendant, Joseph Monroe, original contractor for defendant Charles Logus, the owner of such building.

The objection is that the plaintiffs failed to notify the owners of the building of the nature and extent of their claim until after the building had been completed and accepted according to the terms of the contract, and the last payment had become due for the construction thereof.

The court below found that the building was completed and accepted on the eighteenth day of July, 1881, and rendered judgment for the defendants.

The question here is simply one of fact. Without going into details it is sufficient to say that we have examined the testimony and reached the conclusion therefrom that the judgment must be affirmed.

GIBBS v. Davis.

Filed March 26, 1884

A DEMAND FOR PAYMENT IS NOT NECESSARY TO THE STATEMENT of a cause of action by an attorney to recover the reasonable worth of his services.

APPEAL from a judgment of the circuit court. The opinion states. the facts.

W. W. Gibbs, for the appellant.

W. T. Burney, for the respondent.

THE COURT. A complaint alleging the retainer of the plaintiff as an attorney and counsellor at law, a promise by the defendant to pay the reasonable worth of the plaintiff's services, the rendering of certain services under such retainer, the subsequent discharge of the plaintiff, and the reasonable worth of the services rendered, states a good cause of action. A demand of payment in such a case in not

necessary.

Judgment reversed.

SUPREME COURT OF CALIFORNIA.

No. 7,595.

NEVADA BANK OF SAN FRANCISCO v. STEINMETZ, Treasurer, etc.

In Bank. Filed May 6, 1884.

NEW TRIAL WRIT OF ERROR-SUPERSEDEAS.-The pendency of a motion for a new trial operates as a postponement of the time for filing a writ of error and bond for the removal of a cause to the supreme court of the United States, until the disposition of such motion. The filing of such writ and bond within sixty days after the disposition of the motion for a new trial will operate as a supersedeas, although they were not filed within sixty days after the rendition of the judgment complained of.

MOTION for the issuance of a writ of mandate. The opinion states the facts.

McAllister & Bergin, for the plaintiff.

Skirm & Storey, for the defendant.

MYRICK, J. This is a motion by the plaintiff that a writ of mandate issue according to the judgment of this court.

On the 17th day of November, 1882, this court rendered judgment in favor of plaintiff that it was entitled to a writ of mandate as prayed for. A petition for rehearing was denied December 16, 1882. The defendant moved for a new trial, which was denied November 27, 1883. A writ of error, for the removal of the cause to the supreme court of the United States was allowed and filed January 23, 1884, and on the same day a bond, approved by the Chief Justice of this court, was filed.

It thus appears that the writ of error and bond were not filed within sixty days after the judgment awarding the writ of mandate, but were filed within sixty days after the order denying the motion for a new trial. The point for determination is, whether the writ of error and bond operates as a supersedeas. Section 1,007, Revised Statutes, United States, requires that the writ and bond, to operate as a supersedeas, must be lodged in the clerk's office, where the record remains, within sixty days after the rendering of the judgment complained of.

We are of the opinion that, for the purposes of the present motion, the motion for a new trial operated as a postponement of the time for filing the writ of error and bond until the disposition of that motion and, as they were filed within sixty days after such disposition, a stay of proceedings on the judgment was effected. The motion is denied.

MORRISON, C. J., and MCKEE, J., concurred.

THORNTON, J. I concur in the order.

Ross, J., and SHARPSTEIN, J., dissenting. A supersedeas is a statutory remedy, and can only be obtained by a compliance with all the required conditions. By the express language of the act of congress, in order to obtain such supersedeas, a copy of the writ of error must be lodged for the adverse party in the clerk's office, where the record remains, within sixty days, Sundays exclusive,

after the rendering of the judgment complained of, and giving the security required by law. In the present case it is not claimed that this was done. Said the court in Sage v. Central R. R. Co. 3 Otto. 417. "Time is an essential element in the proceeding, and one which neither the court nor the judges can disregard. If a delay beyond the time limited occurs, the right to the remedy is gone, and the successful party holds his judgment or decree freed and discharged from this means of staying proceedings for its collection or enforcement."

The matter being regulated by the statutes of the United States, we are unable to see what the proceedings on motion for a new trial in the state court have to do with it. In our opinion, the petitioner is entitled to the writ adjudged him.

No. 10,964.

PEOPLE v. SWAFFORD.

Department One. Filed May 8, 1884.

PUBLIC TRIAL-EXCLUSION FROM COURT-ROOM.-An order in a criminal prosecution excluding all persons from the court-room, except those connected with the trial, in the absence of a showing to the contrary, will be presumed to have been assented to by the defendant. The phrase public trial," in the constitutional provision guaranteeing to every one accused of crime, the right to a public trial is used in opposition to a secret trial. It does not mean that every person who sees fit shall in all cases be permitted to attend criminal trials.

APPEAL from a judgment of the superior court for Tehama county, entered in favor of the plaintiff. The opinion states the facts.

Gale & Hitchcock, for the appellant.

Attorney-General, for the respondent.

The COURT. It is contended by appellant that the court had no power to order that all persons be excluded from the court-room, except the judge, jurors, witnesses, and persons connected with the

case.

The constitution of the state provides that every person accused of crime shall have the right to a public trial: Const. Art. 1 Sec. 13. Non constat, but defendant, who was charged with abducting a chaste female, under age, for purposes of prostitution, assented to or demanded the order.

It is said on behalf of appellant: First-It cannot be presumed that defendant waived a constitutional right by remaining silent; second, the right to a public trial cannot be waived, because the court below had no jurisdiction to try defendant otherwise than publicly.

As to the first point, there is no bill of exceptions in the transcript, and in the absence of evidence as to what took place when the order was made, we cannot presume that defendant remained silent, but, on the contrary, in support of the action of the court below, must presume that defendant assented to the order, if his assent was necessary to its validity.