VOLUME LXXIX.

79 Cal. 7-13. BOLLINGER v. MANNING.

Certificate of Acknowledgment by married woman must be in statutory form, or deed is void, p. 10.

See note to Cox v. Holcomb, 13 Am. St. Rep. 83, on privy examination; Hayden v. Moffatt, 15 Id. 870, on general subject.

Mortgage of Homestead.-Claim must be presented on death of mortgagor, p. 11.

To same effect in Bank v. Stephens, 144 Cal. 663, noted under Camp ▼. Grider, 62 Cal. 20; Building etc. Assn. v. King, 83 Cal. 443, where mortgage executed by both spouses; Rosenberg v. Ford, 85 Cal. 612, further discussing validity of new mortgage by widow after claim barred by nonpresentation; Perkins v. Onyett, 86 Cal. 350, further holding presentation of claim or note alone insufficient; Wise v. Williams, 88 Cal. 33, but holding due presentation shown under facts; Hibernia etc. Soc. v. Wackenreuder, 99 Cal. 508, but holding presentation unnecessary in case of ordinary mortgage where suit begun before mortgagor's death; and McGahey v. Forrest, 109 Cal. 67, holding presentation unnecessary in case of mortgage on probate homestead where right to deficiency waived; Browne v. Sweet, 127 Cal. 334, mortgage on homestead not lost for want of presentation of claim to estate where whole estate set apart to use of family subject to mortgage.

Probate Homestead. Decree establishing on property already homesteaded merely excludes it from administration, p. 11.

Cited in Estate of Fath, 132 Cal. 612 (quoted in Saddlemier v. Stockton etc. Co., 144 Cal. 654), noted under Rich v. Tubbs, 41 Cal. 34; In re Ackerman, 80 Cal. 210, 13 Am. St. Rep. 117, holding such decree unnecessary to vest title in survivor; Neary v. Godfrey, 102 Cal. 342, discussing effect of husband's death on homestead from wife's property assigned to him for defined term in action for divorce against her. Note citations: Sanders v. Russell, 21 Am. St. Rep. 28, on homesteads.

Notice to Creditors.-"Place of Business" of administrator is that where estate business is transacted, p. 12.

3789

To same effect in Roddan v. Doane, 92 Cal. 556, holding presentation sufficient at place specified, although administratrix then absent therefrom; and Cogwill v. Dinwiddie, 98 Cal. 484, on same point, each place being attorney's office.

79 Cal. 14-16. STAPLES v. CONNOR.

Administrator's Sale is void where bond not given nor oath taken,

p. 15.

Distinguished in Dennis v. Bint, 122 Cal. 43, 47, holding authority no attackable collaterally for absence of seal from letters; also distinguishing main case at p. 44, as to bar of heirs by delay of administrator to sue to set aside sale.

79 Cal. 17-22. CHAMPION v. WOODS; 12 Am. St. Rep. 126.

Mistake.-Judgment will not be vacated for, when due to plaintiff's own negligence, p. 22.

See notes to Giles etc. Co. v. Chase, 14 Am. St. Rep. 440, on mistake; Spitze v. Railroad Co., 32 Id. 384, and Payton v. McQuown, 53 Id. 445, 453, on carelessness as bar to relief; Nye v. Sochor, 53 Id. 900, on general subject.

79 Cal. 23-29. COWARD v. CLANTON.

Statute of Frauds.-Partnership to deal in lands need not be in writing, p. 26.

Cited in Moran v. McInerney, 129 Cal. 31, on point that partnership realty may be treated as personalty in action for dissolution; Bates v. Babcock, 95 Cal. 484, 487, 488, 29 Am. St. Rep. 138-141, where partnership was to be confined to specified property; Meagher v. Reed, 14 Colo. 366, as to agreement to acquire lease of realty in name of one partner; Flower v. Barnekoff, 20 Oreg. 138, as to contract to speculate in lands.

Partnership.-Statute of Frauds cannot be raised in defense to action for accounting, when contract executed, p. 27.

To same effect in Bibb v. Allen, 149 U. S. 498, as to like action by agent against principal, where contracts void under statute.

Partnership. Share of Profits cannot be awarded, on sale of part of lot, where whole lot not sold at profit, p. 28.

Distinguished in Green v. Brooks, 81 Cal. 333, sustaining right of beneficiary to accounting, although no allegation made as to existence of profits.

Attorney is presumed to have authority to sign pleading binding client as admission, p. 29.

See note to Williams v. Johnson, 34 Am. St. Rep. 520, on general subject.

79 Cal. 30-34. AH FONG v. STERNES.

False Imprisonment.-Complaint need not allege malice and want of probable cause, p. 32.

Cited in Davis v. Pacific etc. Co., 127 Cal. 322, but holding complaint not one for false imprisonment and evidence insufficient to sustain that action.

False Imprisonment.-Burden is on defendant to prove imprisonment, lawful, p. 32.

See note to Krause v. Spiegel, 28 Am. St. Rep. 141, on general subject. Change of Venue, when otherwise proper, will not be denied because of addition of count as to which change is not grantable, p. 33.

To same effect in Warner v. Warner, 100 Cal. 16, as to joinder of action for divorce and to set aside fraudulent conveyance of community property; Brady v. Times etc. Co., 106 Cal. 58, as to addition of defend. ants to defeat motion; and on same point, Griffin etc. Co. v. Magnolia etc. Co., 107 Cal. 381; Yore v. Murphy, 10 Mont. 311, construing local statute.

Right to Change of Venue is to be determined by state of pleadings at time of defendant's appearance, p. 33.

To same effect in Hennessy v. Nicol, 105 Cal. 141, on point that ruling on application cannot be deferred until motion for alimony decided; and Brady v. Times etc. Co., 106 Cal. 62, on point that right cannot be defeated by allowance of amendment after motion for change made; Wallace v. Owsley, 11 Mont. 224, on point that ruling on motion cannot be delayed until after answer filed because of cross-motion based on convenience of witnesses; and on same point, Smail v. Gilruth, 8 S. Dak. 290.

79 Cal. 34-44. BAKER v. FIREMAN'S FUND INSURANCE CO. Mortgage is shown by deed with defeasance back, p. 40.

To same effect in San Jose Bank v. Bank, 121 Cal. 542, as to assignment of redemptioner's rights, as security. Note citations: Keithley v. Wood, 42 Am. St. Rep. 272, on general subject.

Evidence of Witness is not conclusive on court, although positive and uncontradicted by other evidence, p. 41.

To same effect in McLennan v. Bank, 87 Cal. 574, and In re Blythe, 110 Cal. 236, cited under Mogk v. Peterson, 75 Cal. 496; Mattock v. Goughnour, 11 Mont. 273, holding new trial improperly granted under facts, for disbelief of evidence.

79 Cal. 44-45. AHERN v. McGEARY.

Review on Appeal.-Appellant cannot rely on error as to another party not appealing, p. 45.

See note to Harpold v. Stobart, 15 Am. St. Rep. 626, on appellate procedure.

Employer is not liable for acts of independent contractor, p. 45.

Cited in Hedge v. Williams, 131 Cal. 459, 82 Am. St. Rep. 369, noted under Bennett v. Truebody, 66 Cal. 509.

79 Cal. 45-50. OAKLAND PAVING CO. v. BARSTOW.

Street Improvements.—Extension of time is not new contract, p. 47. To same effect in Ede v. Cogswell, 79 Cal. 282, holding, as in main case, power to extend contract executed before new constitution went into effect, not affected thereby.

79 Cal. 50-51. MCAULAY v. TRUCKEE ICE CO.

Appeal.-Presumption upon is that order changing venue was prop erly granted, unless record shows otherwise, p. 50.

See note to McGowan v. Lufburrow, 14 Am. St. Rep. 183, on general subject.

79 Cal. 51-54. MAULDIN v. CLARK.

Trover will lie for cordwood cut on another's ground, notwithstanding his recovery for waste therefor, in action for ejectment, p. 53

See note to Wilson v. Hoffman, 32 Am. St. Rep. 488, on trover.

79 Cal. 55-62. SNODGRASS v. PARKS. S. C. see PARKS v. DunLAP, 86 Cal. 190.

Vendor may bring action to quiet title against vendee where latter has voluntarily abandoned contract, p. 58.

To same effect in Spinning v. Drake, 4 Wash. 295, discussing rescission of executory contract by parol.

79 Cal. 62-65. MILLER v. BUTTERFIELD.

Mining Partnership includes only properties acquired in pursuance thereof, p. 64.

Cited in Prince v. Lamb, 128 Cal. 128, noted under Emery v. Mason, 75 Cal. 222.

Parol Evidence is inadmissible to enlarge, extend or otherwise vary, written contract, p. 65.

See note to Palmer v. Farrell, 15 Am. St. Rep. 714, on general subject.

79 Cal. 69-73. FIRST NATIONAL BANK v. WOLFF.

Alteration of Note will not avoid it if in immaterial particular, p. 71.