completed according to contract, taken in connection with the personal making and signing of the assessment, diagram and warrant by the superintendent.

Under the San Francisco street work act of 1872, a block of a street might be graded, without a petition therefore by the property owners, whenever two or more adjacent blocks had been graded on each side of the ungraded block. In Fanning v. Bohme, 76 Cal. 149, the work was done under this act. The grading of a certain block was ordered to be done, upon the determination by the city officials that an adjacent block had been graded about twenty years previously. The defendant set up that such adjacent block never had, in fact, been graded. The evidence showed that the present grade of such adjacent block varied in places from the official grade from a few inches to a foot and three-quarters. Held, that the evidence was insufficient to overcome the prima facie presumption that all proceedings were regular, including the proper grading of the block twenty years previously. [See also Ede v. Knight, 93 Cal. 159; Fanning v. Leviston, 93 Cal. 186; Himmelman v. Carpentier, 47 Cal. 43; Dorland e. McGlynn, 47 Cal. 47; Macadamizing Co. v. Williams, 70 Cal. 534; City of Stockton v. Creanor, 45 Cal. 643.]

Parol evidence is admissible to prove that the record made by the superintendent of streets of the completion of a contract was made after the assessment issued, although it is dated before the assessment issued. Such evidence does not contradict the record. It only goes to prove when the record was made. [Gately . Irvine, 51 Cal. 172.]

The records of the council concerning the publication of notices of the award of the contract can not be contradicted by parol evidence. So that, if those records show that the council ordered the clerk to advertise the awards, they cannot be contradicted by parol. [Dorland v. McGlynn, 47 Cal. 47.]

Parol evidence is, however, admissible to show that a certain document, offered by the plaintiff as the record of the council ordering the work to be done, was not in fact a record of the council, and that the true record did not authorize the work. [Dyer v. Brogan, 70 Cal. 136.] Parol evidence is always admissible to prove which of two putative records is the true one, as such evidence does not contradict the record but establishes it. [Id.] The defendant must be proved to be the owner of the lot, if he denies it. [City of Santa Barbara v. Huse, 51 Cal. 217; Harney v. McLaren, 66 Cal. 34; Robinson v. Merrill, 87 Cal. 11.]

The affidavit of demand endorsed upon the contractor's return is competent evidence to prove the demand. [Dyer v. Brogan, 57 Cal. 234; Himmelmann v. Hoadley, 44 Cal. 214; Deady . Townsend, 57 Cal. 298; Ede v. Knight, 93 Cal. 160;] and it is also prima facie evidence of the agency of the person making a demand on behalf of the contractor, if the affiant in his affidavit states that he was such agent. [Whiting v. Townsend, 57 Cal. 515; see Himmelmann r. Woolrich, 45 Cal. 249.] In fact the statute [section 12] expressly states that the affidavit of demand and non-payment, together with the warrant, assessment, etc., shall be prima facie evidence "of the right of the plaintiff to recover in the action."

If it be proved that a petition for grading has been filed in the office of the clerk of the city council, and that it has been lost and cannot be found, secondary evidence of its contents is admissible. But while secondary evidence of the contents of the petition is in such case admissible, a writing copied by a short hand reporter from his notes of the evidence taken in another case in which a certified copy of such petition was read in evidence is not admissible, even though the case be one in which secondary evidence of the contents of the original petition is admissible. A copy of a certified copy of an original instrument which has been lost, is not competent evidence and is not admissible in any case, to prove the contents of the original, unless shown to have been compared with the original. [Dyer v. Hudson, 65 Cal. 372.]

As to what constitutes evidence of the grade of a street, see Gafney v. San Francisco, 72 Cal. 146; Dorland v. Bergson, 78 Cal. 637; City of Napa v. Easterby, 61 Cal. 510; Chambers v. Satterlee, 40 Cal. 497; Himmelmann v. Hoadley, 44 Cal. 213; Williams v. Savings & L. Soc., 97 Cal. 122. In Gafney v. San Francisco, supra, it was held that a statute fixing the grades of certain streets in the city and county of San Francisco at their points of intersection, fixes the grade at all intermediate points by connecting the named points by a straight line. But the points of intersection must not be more than one block apart. Thus in Dorland v. Bergson, supra, it was held that the establishment of the official grade of two crossings of the same street, which are two blocks apart, does not establish the official grade of the intervening portion of the street.

VI. Decree. The statute [section 12] expressly provides that "the court in which said suit shall be commenced shall have power to adjudge and decree a lien against the premi ses assessed, and to order such premises to be sold on exe

cution, as in other cases of the sale of real estate by the process of said courts." The statute does not provide for nor does it contemplate any personal judgment against the defendant. The expense of the improvement is a charge. upon the property supposed to be benefited, i. e., the property subject to assessment under the act, and is not a charge against the owner personally. It was held at an early day that a statute making the owner personally liable for a deficiency was, in this respect, unconstitutional and void. [Taylor v. Palmer, 31 Cal. 241; Baudry v. Valdez, 32 Cal. 270; Guerin v. Reese, 33 Cal. 292; Gafney v. Donohue, 36 Cal. 104; Coniff . Hastings, 36 Cal. 292; Himmelmann e. Steiner, 38 Cal. 176; Randolph v. Bayue, 44 Cal. 366.] "In furtherance of this end [i. e., that the expense of the improvement is a charge upon the property assessed, and not a charge upon the owner personally] the identity of the lot assessed, and not the person who may be the owner, is made the essential requirement of the statute, the first must be specifically described, while the latter may be designated as 'unknown." [Gillis v. Cleveland, 87 Cal. 217.]

If a judgment provide for a personal judgment against the defendant for any deficiency that may remain after a sale of the lot assessed, it is unauthorized and erroneous, [Manning v. Den, 90 Cal. 610, decided under the present street improvement act-the Vrooman act of March 18, 1885.]

If a lot is assessed to one person, the contractor can not recover judgment against another. [Blatner v. Davis, 32 Cal. 328.]

A decree enforcing the lien cannot be entered until all the owners are made parties and served with process. [Hancock v. Bowman, 49 Cal. 413; Diggins v. Reay, 54 Cal. 525.]

When two or more lots are separately assessed each lot is chargeable only with the amount assessed upon it, and the judgment should state the amount for which each lot is liable, and should order a sale of each lot, or so much thereof as may be necessary to satisfy the amount assessed against it, and costs. [Brady v. Kelly, 52 Cal. 371.] The liability of each lot is independent of any other lot, and constitutes a separate demand, upon which a separate cause of action may be based. And, therefore, a recovery upon lot "A" in a former action, although between the same parties, is a different cause of action, and, consequently, not a good plea in bar of an action upon lot "B." [Gillis v. Cleveland, 87 Cal. 214, 218.]

When several defendants are owners of a lot, judgment

can not be ordered against only one of the defendants. [Clark v. Porter, 53 Cal. 409.]

When the court finds generally that the council had not acquired jurisdiction to order the work, but also finds particular facts sufficient to show that it did have jurisdiction, judgment should be rendered for plaintiff. [Dyer v. Chase, 57 Cal. 284.]

Judgment may be enforced against the property assessed even though it be defendant's homestead. [Perine v. Forbush, 97 Cal. 305.]

In Kreling v. Muller, 86 Cal. 465, it was held that under the Vrooman act of March 18, 1885,-prior to the amendment of sections 3 and 7 by the act of March 31, 1891,-a judgment charging upon a lot a sum greater than one-half the value of such lot, as borne upon the preceding assessment roll for municipal purposes, is erroneous, and that it makes no difference that the work called for by the resolution and order is split up into separate contracts and assessments. But this decision was based upon provisions of sections 3 and 7 of the act as it originally stood, by which it was provided that a lot could not be charged for work called for by one resolution of intention and order in a greater sum than one-half the value of such lot as it was last assessed for municipal taxation. These provisions of sections 3 and 7 were eliminated by the amendment of March 14, 1889. [Statutes 1889, pages 158-160, 163.] And in this respect the amendment of March 31, 1891, [statutes 1891, pages 196-199, 201,] follows the amendment of 1889; so that, as sections 3 and 7 now stand, i. e., as amended by the act of March 31, 1891,-the last amendment of these sections no part of the property assessed is exempt from the amount of the assessment, but the lot is chargeable with the whole amount assessed against it regardless of its value, even though the amount assessed may far exceed the value of the lot.

SECTION 12. The city council, instead of waiting until the completion of the improvement, may, in its discretion, and not otherwise, upon the completion of two blocks or more of any improvement, order the street superintendent to make an assessment for the proportionate amount of the contract completed, and thereupon proceedings and rights of collection of such proportionate amount shall be had as in sections eight, nine, ten, eleven and twelve of the act of which this is amendatory is provided. [Amendment approved March 14, 1889, statutes 1889, page 169.]

[Section 1212 was added to the act in 1889 by the act of March 14, 1889, statutes 1889, page 169.]

SECTION 13. When any portion of any street, avenue, lane, alley, court or place in said city improved, or any sidewalk constructed thereon shall

be out of repair, or needing reconstruction, and in condition to endanger persons or property passing thereon, or in condition to interfere with the public convenience in the use thereof, it shall be the duty of said superintendent of streets to require, by notice in writing, to be delivered to them or their agents personally, or left on the premises, the owners or occupants of lots or portions of lots fronting on said portion of said street, avenue, alley, lane, court, or place, or of said portion of said sidewalk so out of repair or needing reconstruction as aforesaid, to repair or reconstruct, or to do both, forthwith, said portion of said street, avenue, lane, alley, court, or place, to the center line of said street in front of the property of which he is the owner, or tenant, or occupant, and said superintendent of streets shall particularly specify in said notice what work is required to be done, and how the same is to be done, and what material shall be used in said repairs, or reconstructions, or both. If said repairs or reconstructions, or both, be not commenced within three days after notice given as aforesaid, and diligently and without interruption prosecuted to completion, the said superintendent of streets may, under authority from said city council, make such repairs, reconstruction, or both, or enter into a contract with any suitable person, at the expense of the owner, tenant or occupant, after the specification for the doing of said work shall have been conspicuously posted by him in his office for two days, inviting bids for the doing of said work, which bids shall be delivered to him at his office on or before the second day of said posting, and opened by him on the next day following the expiration of said two days of posting, and the contract by him be awarded to the lowest bidder, if such lowest bid, in the judgment of said street superintendent, shall be reasonable. All of said bids shall be preserved in his office and open at all times after the letting of the contract to the inspection of all persons, and such owner, tenant or occupant shall be liable to pay said contract price. Such work shall be commenced within twenty-four hours after the contract shall have been signed, and completed without delay to the satisfaction of said street superintendent. Upon the completion of said repairs, or reconstruction, or both, by said contractors as aforesaid to the satisfaction of said superintendent of streets, said superintendent of streets shall make and deliver to said contractor a certificate to the effect that said repairs, or reconstruction, or both, have been properly made by said contractor to the grade, and that the charges for the same are reasonable and just, and that he, said superintendent, has accepted the same. [Amendment approved March 14, 1889, statutes 1889, p. 169.]

[Section 13 was amended in 1889 by act of March 14, 1889, statutes 1889, p. 169.]

I. Scope of Section Thirteen. Sections 13, 14 and 15 are intimately correlated. Together they provide the machinery for repairing and reconstructing to the center line, at the expense of the owner of the abutting property, any portion of any unaccepted street, avenue, lane, alley, court or place improved, or any sidewalk out of repair and needing reconstruction. The superintendent of streets may himself do the repairing or reconstructing or may let a contract therefore to some suitable person, at the expense