Bowie

Assuming that, in an action to foreclose the lien of a street assessment, it is competent for the defendant to show that the work contracted for has not been done, or that the specifications for the work have been manifestly disregarded (McVerry v. Kidwell, 63 Cal. 246 ), such a defense must not only he alleged in the answer, hut must also be supported by evidence at the trial. If the court refuses to hear any evidence in support thereof, or disregards it in its decision, exception should he taken to its rulings, in order to have the same considered upon a motion for a new trial. Upon the hearing of such motion any errors in law occurring at the trial must be presented in a hill of exceptions or statement of the case (Code Civ. Proc., sec. 658), and cannot be considered if presented merely in ex parte affidavits containing the evidence which was presented at the trial and the rulings thereon.

After the trial in the present action the defendants gave notice of their intention to move for a new trial upon the ground of surprise and errors in law occurring at the trial, stating that the motion as to the surprise would he made upon affidavits. In their notice of intention they also…