Allen v. Bank, 22 Wend. 215; Daniels Negotiable Instrument, section 960. But it is customary for him, in protesting a bill, to give the proper notice of dishonor. Proffiatt Notice, sections 142, 143. And in many of the states the law merchant is so modified that he is required to give notice. Formerly his certificate might not be received as proof of the protest of an inland bill. Case v. Heffner, 10 Ohio, 180. By section 378 of the Code, "every notary public is required to keep a true record of all notices given or sent by him, with the time and manner in which the same were given or sent and the names of all the parties to whom the same were given or sent, with a copy of the instrument in relation to which the notice is served and of the notice itself." Section 379 requires his record and official papers to be filed with the clerk of the court upon his death, resignation, or removal, and provides for certified copies. Very evidently this is for the purpose of perpetuating proof of the notice as well as of the demand and protest. Section 3054 permits a notary "to inform the indorser or any party to be charged, if in the same town or township, by notice deposited in the nearest post office to the parties to be charged, on the day of the demand, and no other notice shall be necessary to charge such party." The advantage in having an inland bill protested by a notary, and notice given by him, is that the evidence is thus perpetuated; and notice to indorsers living in the same town or township may be given by mail, instead of personally. These statutes clearly recognize giving notice as a part of the notary's official duty. Indeed, the term "protest" is ordinarily used as including the entire proceeding necessary to charge indorsers. Notaries are nearly always resorted to for this work, and the owner of the draft may be assumed to have intended this course to be pursued. As said in Tiernam v. Bank, "No agent could have been selected with more propriety for the performance of this duty than one whose profession and office were calculated to fit him peculiarly for the discharge. They are almost universally resorted to for the

purpose. We cannot perceive, therefore, that the bank was wanting either in the degree of skill or diligence which is required under such circumstances to exempt an agent from liability." Baldwin v. Bank, supra; Hyde v. Bank, supra; Swedes v. Bank, 20 Johns. 384; Bellemire v. Bank, 4 Whart. 105, 1 Miles, 173; Bank v. Howell, supra; Fisher v. Bank, 7 Blackf. 610; Turner v. Rogers, 8 Ind. 139. Bank v. Ober, 31 Kan. Sup. 599 (3 Pac. Rep. 324), is based on the finding that the statutes of Kansas do not authorize the notary to give notice. Our conclusion rests on statutes allowing a notary, as such, to perform this duty. Surely, the bank acted prudently in intrusting to a public officer the doing of that which was incumbent on him as an officer of the law to do. -Affirmed.

JAMES MURPHY, Appellant, v. FRANK OLBERDING,

Slander: LARCENY: Justification. Defendant owned wire on a line fence between himself and plaintiff. Plaintiff removed the wire from the old posts, and placed it on new ones set by him on or 3 near the line. Defendant accused him of stealing the wire and in an action for slander pleaded the truth in justification. Held, that the wire was part of the realty, and defendant's acts did not constitute larceny, and that a verdict for defendant was not supported by the evidence.

Secondary Evidence: JURY QUESTION. A copy of a contract being offered, a witness testified that he had once had the original, but that it had been blurred with ink by his children; that he made 1 the copy, and destroyed the original. Held, that the copy was admissible though made after such suit was brought, since any suspicious circumstances attending the loss of the original were for the jury.

CONCLUSIONS. A statement by a witness that certain property in con2 troversy belonged to him is not inadmissible as a conclusion, since the question calls for a fact as well as an opinion.

Appeal from Carroll District Court.-HON. Z. A. CHURCH, Judge.

MONDAY, FEBRUARY 6, 1899.

ACTION for slander. Verdict and judgment for defendant, and plaintiff appeals.-Reversed.

Geo. W. Paine for appellant.

A. T. Olerich for appellee.

DEEMER, J.-The slanderous words were: "You damn Irishman! You stole my wire." The speaking of these words was admitted, but defendant pleaded in justification that he spoke the truth. Defendant was permitted to offer in evidence the copy of a written contract between himself and Mrs. Kernan, plaintiff's grantor, concerning the erection of a fence upon or near their division line, from which the wire that plaintiff was charged with having stolen was taken. Defendant testified that he at one time had the original contract, but that it had been blurred with ink by his children; that he put some grease upon it, to bring out the writing, made the copy which was introduced in evidence, and threw the original away, believing it was of no further use; and that he had made search for the original, and could not find it.

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Surely, the copy was admissible, although made after this suit was brought. If there were any suspicious circumstances connected with the loss of the original, they were for the jury. Livingston v. Rogers, 2 Johns. Cas. 488; Jackson v. Woolsey, 10 John. 453; Smith v. Inhabitants of Holyoke, 112 Mass. 317.

II. In response to a question from his counsel, defendant was permitted to state that the wire belonged to him. This is said to be a conclusion of the witness, and therefore inadmissible. We have recently held that such conclusions are admissible; that the question calls for a fact as well as an opinion. Huesinkveld v. Insurance Co., 106 Iowa, 229; Sax v. Davis, 81 Iowa, 692; Jamison v. Weaver, 81 Iowa, 212; State v. Brooks, 85 Iowa, 366; Jack

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son v. Jackson, 97 Ala. 372 (12 South. Rep. 437); Steed v. Knowles, 97 Ala. 573 (12 South. Rep. 75); Bradner Evidence, p. 393; Knapp v. Smith, 27 N. Y. 279; Caspar v. O'Brien, 47 How. Prac. 80.

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III. Viewed in its most favorable light for defendant, the evidence discloses the following state of facts: Defendant was the owner of the wire, which was attached to posts set on or near the line between his and plaintiff's farm. Plaintiff took the wire off the old posts, and put it upon new ones set by him on or near the line, where it still remains. It also appears that plaintiff thought he had a right to some of the wire, as he was rebuilding the fence because of the defective condition of the old posts. There are many reasons why this did not constitute larceny. In the first place, the wire attached to the old posts was a part of the realty; and plaintiff, in taking it therefrom, and attaching it to his own, was guilty of nothing more than a trespass upon defendant's property. The wire in this case was a part of the realty, and, as the severance was made by the wrongdoer himself, his use of the wire in the manner shown is not larceny, for the reason that he did not take and carry away the personal property of another. That which was severed was in his possession as a part of the realty. State v. Berryman, 8 Nev. 262; People v. Williams, 35 Cal. 671; Langston v. State, 96 Ala. 44 (11 South. Rep. 334). If plaintiff, after taking the wire, had abandoned it, even for a short period of time, and subsequently carried it away, or appropriated it to his own use, he might have been guilty of the crime charged. 4 Blackstone Commentaries, p. 232; Holly v. State, 54 Ala. 238; State v. Parker, 34 Ark. 158; State v. Hall, 5 Har. (Del.) 492. Again, there is no evidence of the animus furandi. Plaintiff simply placed the wire on new posts, in almost exactly the same situation as before he removed it from the old, and there was no evidence of any intent to convert the property to his own use. State v. Barrackmore, 47 Iowa, 684. There was no evidence to

support the verdict returned, and the court should have sustained plaintiff's motion for a new trial. Organ Co. v. Caldwell, 94 Iowa, 584.-REVERSed.

DETLOF KAHL, Appellant, v. LEWIS SCHMIDT.

Boundary Dispute: ADVERSE POSSESSION. Adjoining land owners, being in doubt as to the dividing line, cause a survey to be made, which, by mistake, gave plaintiff more than the number of acres claimed by him. It was never agreed that the line surveyed should be the dividing line, and the plaintiff stated on numerous subsequent occasions that he did not claim more than the number of acres he purchased, but after the mistake was discovered claimed the excess by adverse possession. The line was not marked by fence or other permanent boundary for as long as ten years before the bringing of suit to establish title. Held, that the parties occupied under a mistaken belief that the line located was correct, and that neither intended to claim more than the true amount. Hence, plaintiff did not hold excess adversely.

Appeal from Crawford District Court.--HON. S. M. ELWOOD, Judge.

MONDAY, FEBRUARY 6, 1899.

APRIL 27, 1876, the plaintiff bought the west one hundred and twenty acres of the north one-half of section 5, township 84, range 39, in Crawford county. The north half of the section contained three hundred and forty-seven and thirty-six one-hundredth acres. In March, 1883, the defendant bought the south half of the east two hundred and twentyseven and thirty-six one-hundredth acres of the north half of said section. Both parties have, since their respective purchases, owned and occupied the land thus conveyed to them. In 1881, while defendant was occupying the land now owned by him, the parties caused a survey to be made by the county surveyor, to ascertain the line, and a line was fixed by the surveyor on which the parties built a fence, which has marked the line of their occupancy since that time. Later, the defend