that "notorious" is synonomous with open, and should be construed with reference to the circumstances and surroundings of the parties.

2

With the rules of law thus settled, we now turn to the evidence, and, without setting it out in detail, state our conclusions therefrom as follows: Plaintiff's mother lived with the father of the deceased as his housekeeper during the summer and fall of 1853. Deceased, who was then a young man, waited upon her and escorted her to various entertainments. After the birth of plaintiff, deceased visited the mother many times, and spoke of the child as his son. He also gave the mother money with which to purchase clothing for it. It also appears that bastardy proceedings were instituted in the state of New Jersey against the deceased, and that under these proceedings the mother received aid for the support of the child until she died. One of the defendants made affidavit in which she stated that deceased generally recognized plaintiff as his son, and that such fact was generally known in the neighborhood. Another sister, who is also a defendant, made a similar affidavit. Other witnesses testify that while deceased lived in New Jersey he generally called and treated plaintiff as his son, and that he was generally so recognized in the community. In the year 1888 the deceased returned to New Jersey on a visit, and while there inquired after plaintiff, spoke of him as his son, and called him such openly and in the presence of many people. A great number of witnesses testify to having heard of the bastardy pro ceedings, and say, in effect, that this was common knowledge of the community. Soon after coming to Iowa, the deceased spoke to several people about having an illegitimate son in New Jersey, and so described him as to leave no doubt that he referred to plaintiff. As late as the year 1895 the deceased spoke of plaintiff as his son to his neighbors in Iowa. From about the year 1876 until 1885 or 1886, deceased was in the insane hospital at Independence. During the latter years of his life, deceased introduced plaintiff as a relative, sometimes

as a nephew and sometimes as a son. There are many other acts of recognition and notoriety, which need not be referred to, as we have said enough to show the general tenor of plaintiff's evidence. Defendants introduced evidence tending to show that deceased denied that plaintiff was his son, and also to the effect that it was not a notorious fact in the community in which he lived. While giving full force to the evidence, it seems to us that there can be no doubt that plaintiff is the son of Peter Van Horn, and that deceased's recognition of him as such was general and notorious within the meaning heretofore given those terms by this court. We have gone over the entire record with care, and have many times resorted to the transcript; and, without further extending this opinion, it is sufficient to say that, disregarding all improper and irrelevant evidence, of which there was much, we still think that plaintiff has brought himself within the letter of the statutes and is entitled to inherit. The decree of the district court is therefore AFFIRMED.

JOSEPH SCHLITZ BREWING COMPANY, Appellant, v. J. H. BARLOW, Sheriff.

Agency:

EVIDENCE OF. A newspaper publication, wherein one advertises himself to be the agent of another, is inadmissible to prove agency, unless it appears that the alleged principal caused or knew of such publication.

Appeal from Keokuk District Court.-HON. BEN. McCoy, Judge.

MONDAY, JANUARY 23, 1899.

MARTZ & MEIER, as a firm, was engaged in the sale of intoxicating liquor at Hedrick, Iowa. The firm of W. V. Silvers & Co. was engaged in the sale of beer at Ottumwa, Iowa, the beer being that manufactured by the plaintiff firm, and furnished the beer sold by Martz & Meier. The plaintiff

owned a set of bar fixtures at Eldon, Iowa, and Silvers & Co. loaned the set to Martz & Meier, and it was used in the saloon at Hedrick. Injunction proceedings were commenced against Martz & Meier to restrain them from selling, and when it appeared that the petition of consent, under which their permit issued, was not sufficient, a decree was entered against them by consent. Under an execution issued on the judgment, the defendant sheriff seized the fixtures in question, and, after notice of plaintiff's ownership, sold them to one L. B. Cremer, who owned the building in which the saloon was kept, and was a party defendant in the injunction proceeding. This action is to recover from the sheriff the value of the fixtures, alleging that he wrongfully took, sold, and appropriated the same. The answer is a denial, and also represents that plaintiff, as a corporation in the state of Wisconsin, with a view to aid Martz & Meier to sell liquors in Iowa in violation of law, furnished to them the fixtures in question, and that they were so used, and the answer set up the decree in the injunction suit. There was a denial of the averments of the answer, and the cause was tried to a jury, that found for defendant, and from a judgment thereon the plaintiff appealed.-Reversed.

Jaques & Jaques and C. H. Mackey for appellant.

Woodin & Son and Hamilton & Donahue for appellee.

GRANGER, J.-There is no controversy but that the plaintiff owned the fixtures in question when they were loaned to Martz & Meier. As the loan was made by Silvers & Co., it became necessary to show that the company had authority so to do, and there was an effort to do so by showing that Silvers & Co. was the agent of the plaintiff. The court, by an instruction, made the defense rest on the facts that Silvers & Co. was the agent of plaintiff, knew that Martz & Meier was using the property in violation of law. In the Sigourney Courier, a newpaper, was published, December 17, 1895, the following: "W. V. Silvers & Co.,

dealers in wines an liquors. Agents for Jos. Schlitz' Milwaukee beer. Office 309 East Main street, Ottumwa, Iowa. Send for prices." This was permitted in evidence, against objections, to prove the agency of Silvers & Co. It in no way appears that plaintiff caused or knew of such publication. It was error to admit it in evidence. If it be conceded that it was published by authority of Silvers & Co., it could be no better as evidence than if it was a statement by Silvers & Co. that it was such agent, and such a statement would not be permissible, under the rule that an agent's declarations are not admissible to show the fact of his agency. Clanton v. Railway Co., 67 Iowa, 350; Bigler v. Toy, 68 Iowa, 687. The rule is elementary. A citation by appellee leads us to think there is a failure to make the distinction between establishing an agency by proving declarations of agent and by the testimony of the agent. While an agent may be a witness to prove his agency, his declarations are not competent for that purpose. In Hall v. Manufacturing Co., 30 Iowa, 215, the agency was shown by the testimony of the agent. Besides, it may be said that there is no evidence whatever of the agency of Silvers & Co. at the time the fixtures were loaned. There is some evidence that a member of the firm was an agent for plaintiff after Martz & Meier had ceased to use the fixtures. With such a state of the record, under the instruc tions given, there should have been a verdict for plaintiff.REVERSED.

WILLIAM BROWNFIELD, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY.

Master and Servant: NEGLIGENCE: Burden of proof In an action by a seryant to recover for personal injuries, the burden is on the servant to prove the negligence which was the proximate cause of his injury.

1

SAME.

Res ipsa loquitur does not apply to injuries received by a loco2 motive fireman riding on an engine which was derailed because of a broken axle.

JURY QUESTION. The question whether a locomotive fireman was jus tified in remaining on the engine because the engineer, after having his attention called to certain peculiar and unusual actions of 3 the engine in running over the track, continued on his run, without giving the matter any serious attention, is for the jury. SAME. The question whether a locomotive fireman, in the exercise of ordinary care, should have appreciated the peril of remaining on the engine after it began to act in a strange and unusual manner 4 in running on the track, the cause of which was unknown to him, is for the jury.

SAME. The question whether the derailment of a train was due to a 5 broken axle of the engine, is for the jury.

EXPERT 1 ESTIMONY. In an action by a locomotive fireman to recover for injuries received through the derailing of his engine, which 6 had a broken axle, expert testimony whether a broken axle might derail an engine is admissible.

SAME. Expert testimony whether certain peculiar and unusual 7 actions on the engine, to which the engineer's attention had been called before the accident, indicated a broken axle, is likewise admissible.

Appeal from Washington District Court.-HON. A. R. DEWEY, Judge.

MONDAY, JANUARY 23, 1899.

ACTION to recover damages for injuries caused by the alleged negligence of defendant. At the close of the evidence for plaintiff, under the court's instruction, the jury returned a verdict for defendant. From a judgment thereon plaintiff appeals.-Reversed.

M. A. McCoid and J. F. Henderson for appellant.

Carroll Wright and Scofield & Scofield for appellee.

WATERMAN, J.-Plaintiff was in the employ of defendant as a locomotive fireman, and had so been at different times. for a number of years prior to his injury. At the time complained of, he was engaged on his engine, which was hauling a