in which case a lien would probably have attached, as claimed by the said respondent. But other portions of the testimony of the said witness seems to negative such conclusions, as will be seen from the following questions asked him, and his answers thereto :

"Question 44. These articles that you have mentioned as furnished to them in the first list you gave this morning in direct examination, they ordered them at the time you have specified, and you just simply forwarded them to them, and charged the usual price, did you not? Answer. We did. Q. 45. The work that you did on the journals and old pulleys were sent by Smith and Owens to your firm in Albary, and you did the work and repairs on them as specified in your bill of items furnished, and when finished delivered them to Smith and Owens at the shop or foundry in Albany? A. We did. Q. 46. And at each time you would charge them for the work done or machinery furnished? A. Yes. Q. 47. Was each of these articles that Smith and Owen purchased of you purchased separately, as charged in the bill? A. They were purchased just as the orders were sent in. Q. 48. And this statement given by you this morning, and alleged in your answer, is simply a running account between Cherry and Parkes and Smith and Owens from November, 1883, to February 22, 1884? A. Simply a running account up to the time the note was given. Q. 51. Your account or bill of items states substantially all the facts, as well as the contracts between your firm and that of Smith and Owens, does it not? A. It does."

This testimony given by the respondent in his own behalf utterly precludes any inference that there was any contract or definite understanding in the outset in reference to furnishing the work and material, or that it was anything more than the performance of casual custom-work. Smith doubtless did speak to Mr. Cherry about doing jobs of that character for Smith and Owens, and furnishing them new machinery; but it is very evident, from the testimony of Cherry, that it was only intended to be such work and machinery as they should from time to time order. Machinists, like other persons carrying on business, have their customers; but the lien law was not designed to give them a lien for work done and articles furnished in their usual course of business, any more than it was to give a lien in favor of grocers, tinners, or plumbers for articles supplied and work done in the ordinary course of trade or employment. There might, in such a case, be such a continuous account that it could be sued upon as an entire transaction; but it would lack the essential ligament which establishes such an entirety that the lien attaches from the beginning. The party who does the work or furnishes the material must be a contractor. He must undertake to do a job, either to build or repair a structure in some particular, and the work must have been done or the material furnished in pursuance thereof. It is the contract and the nature of the subject-matter thereof which give rise to such a lien. An entire transaction must have been contemplated by the parties in the outset. Such a lien is an extraordinary right; it relates back to the time of the commencement of the work or of furnishing the materials, has precedence over intervening claims specified in the act, and extends to the land upon which the structure is situated. It certainly

was not intended to give such a preference in an ordinary business affair, or in any case, other than that of an undertaking upon the part of the mechanic or material-man to build, add an improvement to, or repair, in some particular, the structure, or furnish material therefor. The case cited by the appellant's counsel of Huslett v. Gillespie, 95 Pa. St. 371, seems to sustain this view.

The decree of the circuit court will therefore be modified in the part thereof which gives a preference to said respondents' claim, except as to those articles not covered by the appellants' mortgage.

(3 Wyo. 144)

SUPREME COURT OF WYOMING.

UNITED STATES v. TRABING and another.

Filed April 21, 1885.

1. MOTION FOR NEW TRIAL-INSUFFICIENCY OF EVIDENCE-ASSIGNMENT OF ERRORS.

An assignment of error based upon the alleged insufficiency of the evidence presents nothing for the consideration of a court of errors. A motion for a new trial is always necessary to raise that question.

2. SAME DISCRETION OF THE COURT-QUESTION OF LAW-WYOMING STATUTE. Under the statute of Wyoming (Comp. Laws, 71, 72) a motion for a new trial, in so far as it is based upon error of law occurring at the trial, excepted to by the party making the application, and affecting substantial rights of such party, presents a question of law and is not addressed to the discretion of the court. 3. SAME-ERRORS OF LAW NOT COMPLAINED OF IN MOTION.

After motion for a new trial errors of law cannot be brought before a court of errors for review, unless complained of in the motion, but will be considered as waived.

John A. Riner, for plaintiff in error.

Corlett & Blake, for defendants in error.

LACEY, C. J. The defendants in error have filed a motion to dismiss the writ of error in this cause on the ground that the record presents no question for the consideration of this court. There are 18 assignments of error, of which 2 seek to question the sufficiency of the evidence to sustain the verdict, 15 relate to alleged errors of law occurring on the trial, and 1 is based upon the decision of the court below in overruling the motion for a new trial.

It is contended that the bill of exceptions was not settled and signed within the proper time. Without deciding anything upon that point, we will consider other points raised as though the bill of exceptions was properly in the record, thus bringing into the record all the evidence, the instructions to the jury, and the motion for a new trial. The record does not show any exception to the decision upon the motion for a new trial, unless it be held that the plaintiff in error reserved such exception by merely asking time in which to prepare a general bill of exceptions. Rule 6 of this court, which has been in force a dozen years, provides that "no case will be heard in court unless a motion for a new trial shall have been made in the court below, in which all matters of error and exceptions have been presented, argued, and the motion overruled, and exception taken to the overruling of said motion. Since it is highly important that rules of practice should be settled and fixed, this rule, having been in force so long, should still be adhered to, unless it denies some substantial right, or is so unreasonable as to require its abandonment.

*

The uniform ruling, both in England and in this country, seems to be that an assignment of error, based upon the alleged insufficiency of the evidence, presents nothing for the consideration of a court of v.6p,no.11--46

errors. A motion for a new trial is always necessary to raise that question. The practice has not been at all uniform, however, with reference to some of the questions more or less involved in the decision of this motion. It is not necessary here to review the cases, but it may be of assistance to consider certain results reached by the courts, citing only a few of the numerous cases in which these questions have been considered. At common law, after the original severity of the practice had so far relaxed as to permit a verdict to be attacked by a motion for a new trial, that motion was addressed to the discretion of the court, and a ruling upon it could not ordinarily be assigned as error in a reviewing court. But a motion for a new trial could not be made upon exceptions. Moreover, the party making the motion thereby waived all exceptions taken on the trial.

In many of the states it is still held that a motion for a new trial is addressed to the sound discretion of the trial court, even when based upon errors of law. Final v. Backus, 18 Mich. 218; Johr v. People, 26 Mich. 427; Waters v. Waters, 26 Md. 53-73. In other states it is held that the ruling upon a motion for a new trial, when that motion is based upon errors of law, is reviewable as other questions of law, and is not matter of discretion. O'Brien v. Brady, 23 Cal. 243; Cochran v. O'Keefe, 34 Cal. 554; Voll v. Hollis, 60 Cal. 569; Nesbit v. Hines, 17 Kan. 316; Kline v. Wynne, 10 Ohio St. 223; Spooner v. Keeler, 51 N. Y. 527; Standard Oil Co. v. Amazon Ins. Co. 79 N. Y. 506. It is sometimes held that a party should be required to waive exceptions before his motion for a new trial is entertained. Meeker v. Boylan, 27 N. J. Law, 262. And this especially when the motion and the exceptions involve the same matters. Lee v. Tinges, 7 Md. 215; Mann v. Glover, 14 N. J. Law, 195. On the other hand, it seems to have been held that one who takes a bill of exceptions, embodying his objections to rulings on the trial, after his motion for a new trial has been overruled, thereby waives the objection based upon the denial of the motion. Klein v. Franklin Ins. Co. 13 Pa. St. 247.

In a number of states the aggrieved party may present to the reviewing court exceptions taken on the trial, without reference to whether or not a new trial was demanded in the lower court, (Memphis & C. R. Co. v. Chastine, 54 Miss. 503; Hayward v. Ormsbee, 11 Wis. 3; Smith v. Gillett, 50 Ill. 290; Earp v. Pittsburg, Ft. W. & C. Ry. Co. 12 Ohio St. 621; Brown v. Tolles, 7 Cal. 398; Walls v. Preston, 25 Cal. 59; Brown v. Willoughby, 5 Colo. 1; Butterfield v. Stephens, 59 Iowa, 596; S. C. 13 N. W. Rep. 751; Dedric v. Hopson, 62 Iowa, 562; S. C. 17 N. W. Rep. 772,) and even though a new trial was asked for the same errors. Carpentier v. Williamson, 25 Cal. 154-167. In other states, errors of law occurring on the trial, and not presented in a motion for a new trial in the trial court, are held to be waived. Nesbit v. Hines, 17 Kan. 316; Decker v. House, 30 Kan. 614; S. C. 1 PAC. REP. 584; Midland, etc., R. Co. v. McCartney, 1 Neb. 398; Stanton

Co. v. Canfield, 10 Neb. 389; S. C. 6 N. W. Rep. 466; Detherage v. Montgomery, 4 Bush, 46; Pogue v. State, 13 Mo. 444; State v. Richardson, 77 Mo. 589; Kent v. Lawson, 12 Ind. 675; Hallock v. Iglehart, 30 Ind. 327; Edwards v. Powell, 74 Ind. 294; Steck v. Mahar, 26 Ark. 536.

Much of this diversity grows out of differences in the statutes of the several states, but it at least seems to emphasize the conclusion that nothing is involved except a mere question of practice. If this court should hold that a motion for a new trial waives exceptions to rulings on the trial, and that such motion is in all things addressed to the discretion of the trial court, then the rule requiring such motion to be made would be a delusion, and should not be enforced. It would be taking away substantial rights, and giving instead a shadow.

Our statute concerning new trials, so far as it is applicable to errors of law, is as follows:

"Sec. 306. A new trial is a re-examination in the same court of an issue of fact after a verdict by a jury,, report of a referee, or a decision by the court. The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party. * * * Eighth. Error of law occurring at the trial and excepted to by the party making the application."

"Sec. 308. The application for a new trial must be made at the term the verdict, report, or decision is rendered, and * * * shall be within three days after the verdict or decision was rendered, unless unavoidably prevented. "Sec. 309. The application must be by motion, upon written grounds filed at the time of making the motion." Comp. Laws, 71, 72.

It seems a fair construction of this statute to hold that under it a motion for a new trial, in so far as it is based upon error of law occurring at the trial, excepted to by the party making the application, and affecting materially the substantial rights of such party, presents a question of law, and is not addressed to the discretion of the court. It is true that there may be a question of fact involved in determining the effect of the error upon substantial rights; but such question is not more involved when the error is complained of in a motion for a new trial, than when it is urged as error in the reviewing court upon a bill of exceptions. In either case, although the effect of the error is incidentally considered, the question presented upon the error is properly a question of law. It results that every such error can be fully reserved for review in this court by stating it as a cause in the motion for a new trial, reserving the objection to the decision upon that motion, and assigning such decision for error in this court. The bill of exceptions is still necessary to show the existence of the grounds laid in the motion for a new trial; and also, under our practice, to bring that motion upon the record, and to show the exception taken to the ruling upon it.

The effect of rule 6, when taken in connection with the statute, is to make the method above pointed out the only one by which errors