served and subsequently lost. The case was pending upon appeal in this court. The court below upon the evidence offered found that a notice of appeal had been served and afterwards lost, and ordered that it be supplied as a lost record in the case. From this order the State appeals. The evidence before the District Court upon the questions involving the existence of the notice, and its service, is conflicting. We cannot, therefore, disturb the order of the court below. It is AFFIRMED. INDEX. ACCOUNT. 1. SETTLEMENT BY VOID NOTE: PAYMENT. Where a note given in settlement of an account was declared void because of certain items for intoxicating liquors included therein, and the account had been continued from the date of the note, it was held that payment made upon account generally would be applied to extinguish the earliest legal items embraced in the note. Quigley Brothers v. Duffey, 610. See EVIDENCE, 3, 14. ACTION. See ATTORNEY'S FEES, 1. PRACTICE, 1, 2, 8. STATUTE OF LIMITATIONS. ADMINISTRATOR. 1. MALADMINISTRATION: INTEREST. Where a certain amount in notes came into the hands of an administrator, and his inventory failed to show the rate of interest borne by them, it was held that he should be charged interest thercon, at the rate of ten per cent, to the time when they came into his possession, and at the rate of six per ceat, with annual rests, thereafter. Lommen v. Tobiason, 665. Sce Costs, 1. DESCENT, 1. EVIDENCE, 2, 6, 7. ADVERSE POSSESSION. 1. CLAIM OF TITLE: ABANDONMENT. Possession to be considered adverse must be held with an intention to claim title, and where a party in possession brings an action and recovers from his grantor upon the covenants of warranty in his deed, for a failure of his title, such act constitutes an abandonment of the claim of title under which he holds possession, and he cannot afterward claim that such possession is adverse to the title of the true owner. Davenport et al. v. Sebring et al., 364. AGENCY. See PRINCIPAL AND AGENT. ALTERATION. See PROMISSORY NOTE, 4. APPEAL. See PLEADING, 9. PRACTICE, 2, 3, 24. PRACTICE IN THE SUPREME COURT, 5, 6. SUPREME COURT, 1. APPEARANCE. See PRACTICE, 14. ASSIGNMENT. 1. FOR BENEFIT OF CREDITORS: PREFERENCE. Where the defendant executed chattel mortgages for the benefit of certain creditors, and immediately thereafter, and on the same day, a deed of general assignment for the benefit of all his creditors, it was held that the execution of the instruments together constituted a single transaction, a general assignment, which was void under section 2115 of the Code, not being for the benefit of all creditors in proportion to the amount of their respective claims. The case distinguished from Lampson & Powers v. Arnold, 19 lowa, 479. Van Patten & Marks v. Burr et al., 518. See DRAFT, 1, 2. JUDGMENT, 1. LANDLORD AND TENANT, 3. MECHANIC'S LIEN, 4, 5. MORTGAGE, 2, 7. REPLEVIN, 4. SALE, 1. ATTACHMENT. 1. REMOVAL FROM STATE: STATUTE. The statute authorizing an attachment on the ground that the defendant is about to remove his property out of the State, without leaving sufficient to pay his debts, contemplates a permanent removal and not a temporary use of property by the owner out of the State. Warder, Mitchell & Co. v. Thrilkeld, 134. 2. SURETY ON BOND: LIABILITY OF. Where, in an action of attachment, the defendant filed an answer claiming damages by reason of the wrongful suing out of the attachment, and recovered judgment by default, it was held that such judgment was not conclusive upon the surety on the attachment bond, who was not a party to the action, and that an action against him upon such judgment could not be maintained. Bunt r. Rheum, 619. 3. : PLEADING. In an action upon an attachment bond the petition should set out the bond and the breach of its conditions, and allege that the plaintiff in the attachment suit did not have sufficient reason for believing the alleged grounds for attachment to be true. Id. See LANDLORD AND TENANT, 3. ATTORNEY. See CONTRACT, 6, 7. SERVICES, 2. ATTORNEY'S FEES. 1. ACTION: WHAT CONSTITUTES. Where a note provided for the payment of attorney's fees for its collection, if an action should be commenced thereon, it was held that the prosecution of the claim against the estate of the maker, where payment was resisted by the adininistrator, was such an action as would authorize the allowance of the fee for collection. Davidson v. Vorse, 384. 2. RECOVERY OF: CONTRACT. Where the attorneys foreclosing a mortgage, which provided for reasonable attorney's fees, agreed with the mortgagor that they would charge only one hundred dollars for their services in the case, but an attorney's fee of several hundred dollars was taxed as costs in the case with the mortgagor's consent, and by his procurement, it was held that he could not recover the excess above one hundred dollars from the mortgagee, who purchased the property under the foreclosure for the amount of the judgment and costs. Remley & Swisher v. Johnson County Savings Bank, 575. See Costs, 2. AUDITOR. 1. CRIMINAL LAW: FALSE CERTIFICATE. Where the county auditor gave a false certificate of the receipt by the treasurer of a certain sum in payment of interest upon a loan of the school fund, it was held that such act constituted a crime under section 3968 of the Code, although the auditor is authorized to issue in case of such payment a receipt and not a certificate. The State v. Morse, 509. See HIGHWAY, 3. BANKRUPTCY. 1. DISCHARGE: DEBTS CREATED IN FIDUCIARY CAPACITY. Section 33 of the National Bankrupt Act provides that no debts created while acting VOL. LII-48. in a fiduciary capacity are discharged by proceedings in bankruptcy: Held, that the fact that such a debt was reduced to judgment before defendant's discharge in bankruptcy would not have the effect to remove it from the above exception, the debt being in no proper sense 66 created" by the judgment. Wade v. Clark, 158. See CONVEYANCE, 1. BOUNDARY LINE. 1. SERVICE: JURISDICTION. Under chapter 8, laws of 1874, the record in an action to establish a boundary line must show the fact that an adjacent owner is unknown, and is not a resident of the county, before service upon him by publication will confer jurisdiction upon the court to establish the boundary. This fact may properly be shown by affidavit. Nesselroad v. Parrish, 269. 2. COMMISSIONER: EVIDENCE. The statute contemplates the taking of evidence by the commissioner appointed, and that the survey shall be made in the light of such evidence. Where material evidence is not produced because of the failure of the commissioner to notify a party when the survey will be made the fact constitutes good ground for setting aside his report. Id. CASES IN IOWA REPORTS CITED AND FOLLOWED. Pleading. Adae & Co. v. Zangs, 41, 536. Ambercrombie v. Redpath, 1, 111. Convey- Amsden v. The D & S. C. R. Co., 32, 288. Andrews v. Andrews, 15, 423. Jurisdiction. Show e. cleary, 185. Arnold v. Grimes, 2, 1. Public lands. Weeks v. Loy, 206. Ashworth v. Grubbs, 47, 353. Evidence. Lil- Athearn v. Independent District of Millers- Audubon County v. American Emigrant Babcock v. Hoev et ux., 11, 375. Mortgage. Warner v. Bays v. Herring, 51, 286. Evidence. Reddin v. Gafes. 213. B. C. R. & N. R. Co. v. Verry, 48, 458. Railroads. White v. The K. & D. M. R. Co., 101. Bills v. Mason, 42, 329. Vendor's lien. Rey- Blair & Co. v. Marsh, 8, 144. Vendor's lieu. Blair Town Lot and Land Co. v. Walker, 39, 214. Blythe v. Blythe, 25, 266. Jurisdiction. shaw v. Mcllenry, 186. Bondurant v. Crawford, 22, 40. Fraudulent representations. McClanahan v. Mckinley, 223. Bones v. Aiken, 35, 534. Judgment. Davis Boone v. Mitchell, 33, 45. Continuance. Brainard v. Van Kuran, 22, 261. Garnish- Fix |