due each party, and a balance struck in favor of the plaintiff for which judgment was rendered. Among the items with which the plaintiff is credited, are those contained in the amended replication, and, therefore, it is claimed from such finding that the court must have concluded the plaintiff was entitled to recover therefor. It is true, in stating the account the court charged the defendant with said items. But we do not regard this as a finding of facts. It was merely the form adopted by the court to ascertain which party was indebted to the other. We would not be warranted in assuming, from what is before us, the court found as a fact the plaintiff was entitled to recover for something for which no claim was made in the petition. Error must affirmatively appear.

Now it is more reasonable to suppose the court found the allegations of the amended replication to be true. The fact is undisputed that there was an attempt made to have an accounting. At that time there was evidence tending to show the items now objected to were mentioned and agreed upon as correct, and were treated as payments made by the plaintiff to the defendant. It is true the parties afterward got into a dispute as to another matter, and the accounting was not completed. Under the evidence, however, we think the court was entirely justified in holding that as to the items agreed upon the parties were bound in the absence of mistake. This being so, the court could well have commenced in stating the account where the parties left off. While the evidence is not as clear, direct and conclusive as it might be, we cannot interfere with the finding of the court that the items now objected to were by the parties agreed upon as payments on the amount due defendant.

II. The second error assigned is, that the court erred in finding the defendant had converted certain articles of property to his use. We do not understand this error to be insisted upon in argument. The remaining error, in substance, is that the court erred in finding for the plaintiff.

No foreclosure of the mortgage was asked. It is not contained in the record, and therefore, we do not know its conditions. We infer the defendant set up as a counter-claim the amount he claimed to be due on the mortgage, and asked judgment therefor. The real contention then, between the parties was, how much, if anything, was the plaintiff indebted to the defendant on the mortgage? If nothing, then how much was the defendant indebted to the plaintiff for property belonging to the latter which the former had converted to his own use? The court found in favor of the plaintiff. This was a mere question of fact, and there was evidence tending to support the finding. It is not for us to say which way it preponderated.

AFFIRMED.

IN RE ESTATE OF CATHERINE LENNON.

ESTATES: CONVEYANCE IN LIEU OF DOWEr: void.

Appeal from Winneshiek Circuit Court.
TUESDAY, JUNE 13.

JOSEPH LENNON, surviving husband of Catherine Lennon, filed his petition in the Circuit Court, sitting in probate, for the admeasurement of his distributive share or dower in the real estate of his deceased wife. Certain persons as heirs at law were made defendants, and Mary Byrnes filed an answer to which a demurrer was sustained, and she appeals.

L. Bullis, for appellant.

Cooley, Fannon & Akers, for Joseph Lennon.

SEEVERS, CH. J.-Counsel for the appellant says it was stated in the answer of Margaret Byrnes, "That Joseph Lennon, petitioner, received a deed, October 27, 1879, from Catherine S. Lennon, deceased, in and to S. E. of S. E. of Sec. 8, Tp. 97, R. 7; and that he received it as an advancement of his dower interest in the whole of said estate, and that he received and accepted the same as his dower or share as widower." To this portion of the answer a demurrer was sustained, or if this be not so, it is the only portion of the answer upon which appellant relies. The answer alleges that during the lifetime of Mrs. Lennon, her husband accepted a conveyance of certain real estate in lieu of his distributive share or dower interest in the whole of his wife's real estate. There must, of course, have been a contract to this effect between them. But the statute provides that neither husband or wife has such an interest in the property owned by the other, as can be made the subject of a contract between them. Code, § 2203. Linton v. Crosby, 54 Iowa, 478, is in all respects like the case before us. Following it, the judgment of the Circuit Court must be

AFFIRMED.

INDEX.

ACKNOWLEDGMENTS.

1. DEFECTIVE: CURED BY SUBSEQUENT STATUTES. A statute passed for
the purpose of curing defective acknowledgments, and of giving valid-
ity to recorded deeds and mortgages as to third persons, though imper-
fectly acknowledged, is not repugnant to the constitution in cases where
vested rights are not impaired. As the legislature had the power to
provide by prior law that a conveyance or mortgage should impart con-
structive notice without an acknowledgment, it is equally competent to
make a defective acknowledgment immaterial by a subsequent law.
Ferguson v. Williams et al., 717.

ADMINISTRATOR.

1. SETTLEMENT OF ESTATE: EXCEPTIONS TO REPORT: COSTS. The admin-
istrator may be required to pay all costs arising on the exceptions to his
report, but not the costs of the settlement of the estate. There is no
authority for charging the administrator with any costs, except such as
he wrongfully makes. In re Heath's Estate, 36.

2. PROGRESSIVE REPORTS: APPROVAL: BURDEN OF PROOF. The orders of
court approving the progressive reports of the administrator, from time
to time as made, must be regarded as establishing prima facie that the
reports are correct, and if claimed to be incorrect or fraudulent, the bur-
den of proof is upon the contestants to show such facts. Id.

3. NOTICE OF SALE: FINDING OF COURT CONCLUSIVE. The finding of the
court, that notice of the sale of lands by an administrator had been duly
and legally served upon the parties interested, is conclusive in a collat-
eral proceeding. Lees v. Wetmore, 170.

Where the

4. APPLICATION TO SELL REAL ESTATE: DELAY: PRACTICE.
referee found that the administrator had failed to establish such pecu-
liar circumstances, as would excuse the long delay in making applica-
tion to sell real estate to pay the indebtedness of the intestate, which
finding was approved by the court, and the abstract failed to state that
all the evidence introduced was contained therein, this court, under the
rule, cannot say there was error. Wilson v. Stanton et al., 404.

5. EVIDENCE: TESTIMONY OF PARTY TO TRANSACTION. Where the testi-
mony of the administrator was of a negative character, as that a certain
transaction did not occur to his knowledge, it will not authorize the
other party, under section 3639, Code, to give testimony showing there
was such a personal transaction between her and deceased. In re Es-
tate of Edwards, 431.

See ESTATES OF DECEDENTS, 2, 3, 4.

EVIDENCE, 4, 5.

AGENCY.

1. ESTATES: COLLATERAL SECURITY. In an action by an administrator to
collect the proceeds of notes, placed by the deceased in the hands of the
defendants, as collateral security for the payment of an indebtedness due
other parties, it was held that the parties for whose benefit the notes
were deposited became in equity the owners of the notes; that as to them
the agency of defendants did not terminate upon decedent's death; and
that they were entitled to the notes and proceeds thereof until the in-
debtedness for which they were pledged was paid. Bennett v. Stoddard
& Rennick et al., 654.

See PRINCIPAL AND AGENT.

APPEAL.

1. CERTIFICATE: SPECIFIC QUESTION OF LAW:

PRACTICE. Where the

amount in controversy is less than one hundred dollars, and the certifi-
cate of the trial judge does not present any specific question of law which
this court can properly determine, the appeal will be dismissed. Fitch
v. Flynn et al., 159.

2. WHEN IT LIES: RECORD. An appeal lies as a matter of right from an
order of court sustaining a demurrer to the petition, although the record
does not show an election to stand on the petition. Hampton v. Jones
et al., 317.

3. AMOUNT IN CONTROVERSY: HOW DETERMINED.

To authorize an ap-

peal, without the certificate of the trial judge as to some question of law,
it must appear from the pleadings that the court, consistently therewith,
might have rendered judgment against one of the parties for more than
one hundred dollars. Madison v. Spitsnogle et al., 369.

4. AMOUNT IN CONTROVERSY: JURISDICTIONAL TEST: CERTIFICATE. Was
it possible for either party to obtain a judgment for more than one hun-
dred dollars? This is the jurisdictional test upon an appeal, without the
certificate of the trial judge as to a question of law. More than one ques-
tion may be submitted in a case, but the several questions must be spe-
cifically stated so that this court can determine the precise questions of
law submitted. Questions of law and fact cannot be mingled and called
a question of law. The City of Centerville v. Drake, 564.

5. WHEN DISMISSED: CERTIFICATE: SPECIFIC QUESTION OF LAW. Where
the certificate of the trial judge does not point out, with the requisite
precision, the specific question of law upon which the decision of the
Supreme Court is sought, the appeal must be dismissed. Wheaton v.
Foster, 661.

See BOARD OF SUPERVISORS, 4.

ESTATES OF DECEDENTS, 6.

NEW TRIAL, 3.

ASSIGNEE AND ASSIGNMENT.

1. BY ONE PARTNER: WANT OF AUTHORITY. One partner has no authority
to execute a general assignment of all the property of the firm to a trustee
for the benefit of the firm creditors, without the assent, expressed or im-
plied, of his co-partner, if he can be consulted and is capable of express-
ing assent or dissent. Loeb v. Pierpoint & Tuttle, 469.

2.

:

: VOID. In such case the deed of assignment, by reason
of the want of authority by one partner alone to execute the same, would
be absolutely void. Id.

3. MORTGAGE BY INSOLVENT: INTENT. Whether a mortgage, by an insol-
vent debtor of all his property to certain creditors, should be considered
an assignment, and void because not made for the benefit of all, depends
upon the intent with which it is made. An assignor intends to divest
himself absolutely of the title and the control of the property, and where
it appears that the mortgagor intended to retain control of the property,
and made the conveyance for his own protection, it will be considered a
mortgage. Kohn Bros. et al. v. Clement, Morton & Co. et al., 589.

See ATTACHMENT, 1.

SURETY, 2.
MORTGAGE, 1.

ATTACHMENT.

1. ASSIGNMENT: ATTACHING CREDITOR: PRIORITY. If the assignment is
void no equity arises, which demands that a creditor should surrender
any priority he had secured by an attachment; and the fact that the
partner not assenting instituted no proceedings to set aside the assign-
ment, ought not to work prejudice to the rights of such creditor. Loeb
v. Pierpoint & Tuttle, 469.

2. INDEMNIFYING BOND: PROTECTION OF OFFICER. The levy of an attach-
ment is not within the statute providing for an indemnifying bond,
§§ 3055-3058, Code, and the officer in such case is not protected thereby;
those sections relate solely to the protection of the officer when he serves
an execution. Hall et al v. Ballou, 585.

3. INDEFINITE DESCRIPTION IN MORTGAGE: NOTICE. Where the attaching
creditor had actual knowledge, prior to the levy of the attachment, that
the property levied upon was included in a certain mortgage, the mort-
gage will hold, notwithstanding that the description of the property in
the mortgage was indefinite. Id.

See BOND, 3.

MORTGAGE, 1, 3.

ATTORNEY.

1. APPOINTED IN CRIMINAL CASES: FEES IN THE SUPREME court. An
attorney duly appointed to defend a person in the District Court, may,
in his discretion, present the case on appeal to the Supreme Court, and
recover from the county therefor an enlarged compensation, graduated
on a scale corresponding to the price fixed for the trial in the District
Court. Baylies v. Polk County, 357.

See INJUNCTION, 1.

BASTARDY.

1. CHILD BORN IN WEDLOCK: PRESUMPTION: BURDEN OF PROOF. In a
prosecution for bastardy the evidence showing that the child was born
about three months after marriage, and that at the time it was begotten
the husband was visiting the mother as a suitor, the jury should have