ment did not reckon the grain at such prices, can be only a matter of inference and conjecture. There is nothing in the record to show upon what basis the amount of the judgment was fixed. The court may have erred as to the quantity of the grain, or as to the price. We can presume error in neither way. Error in either direction would have the effect to increase the judgment. But defendants did not except thereto in the court below. They cannot complain of the judgment in this court.

4. Evidence was introduced tending to prove the highest market price of the grain after it was taken and before the trial. The admission of this evidence is not assigned for error. We cannot, therefore, pass upon the question of its competency, for we are to presume that the error in the ruling, if any there be, is waived by the omission to present it in the assignment.

No other questions are raised by the assignment of errors and discussed by counsel. The judgment of the circuit court must be affirmed.

M. J. GREEN, Appellant, vs. J. T. GREEN, Appellee.

Filed December 3, 1879.

A court in which an action for divorce is pending has power to provide for the custody as well as the support of the children during the pendency of such action, and before its final decree.-[ED.

Appeal from Taylor district court.

The facts are stated in the opinion.

G. L. & C. H. Finn and Lyman Evans, for appellant.
No appearance for appellee.

SEEVERS, J. In January, 1879, the plaintiff filed a petition. in the court below asking a divorce from the defendant, and for alimony, and the custody of the children of said parties. In February thereafter the plaintiff filed the petition before us, in which she asked that the custody of said children be given to her pending the divorce proceeding, and that the defendant be ordered to pay a suitable amount of money for their maintenance. The ground upon which this relief was asked was that the "defendant is not a proper person to have the custody of the children.' The defendant moved the court to strike out certain portions of the petition on the grounds that the "court has no power or authority under the petition for temporary alimony to make any disposition of the children whatever, and not until an absolute divorce is granted, and it

is no cause for granting temporary alimony." The motion was sustained, and from such ruling this appeal is taken.

As the appellee has interposed no objection to our so doing, we shall determine the single question presented by the appellant on what is understood to be its merits. The effect of sustaining the motion was to prevent the appellant from showing that the defendant was not a proper and suitable person to have the custody of the children pending the action for a divorce. It mattered not, under the ruling of the court how meritorious the application may have been, or how much the welfare of the children demanded the defendant should not have their custody, the court concluded it was powerless to remedy the wrong, however great it may have been. In this we think the court erred.

It may be conceded that ordinarily, when parents are living apart, that the father is entitled to the custody of the children. "But this right is not an absolute one, and it is usually made to yield when the good of the child, which, especially according to the modern American decisions, is the chief thing to be regarded, requires that it should yield." 2 Bishop on M. & D. § 529.

We know of no reason why the pending of an action for a divorce should change the status of the parties or the children. On the contrary, we think such a fact should require the more free application of the rule. The legal rights of both parents should yield to the good of the child. If it be made to appear its morals would be corrupted if it remained in the custody of either parent pending the action for a divorce, we think it is not only in the power, but that it is the duty of the court to so change the custody as to remove the child from such corrupting influence-not because it is asked by either parent, but because the best interests of the child so requires, to which may be joined the additional reason that public policy so demands.

The statute provides "that the court may order either party to pay the clerk a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute or defend the action." Code, § 2226.

Conceding that the action for divorce, the maintenance of the children and their custody is "a thing of purely modern statutory law," (2 Bishop on Marriage and Divorce, § 526,) yet ample power is found in the foregoing provision of the Code to enable the court to grant the relief asked.

It is evident the orders contemplated in the section of the Code set forth are those which precede the final judgment granting the divorce; for an allowance may be made "for prosecuting or defending the action." The court, then, has the power to provide for the support of the children pending the action. This implies the power to provide for their custody; for the support and maintenance of the children, which the court has the power to provide, may be separate from that provided for either party. Reversed.

HATTIE O. WILLEY, by her next friend, Appellant, vs. JOHN BACKUS, Appellee.

Filed December 3, 1879.

A delivery is essential to the validity of a gift. Where plaintiff claimed title to a piano by gift, and the evidence showed that at the time of the alleged gift it was in the house and possession of her grandmother, the giver; that the possession had never changed, but only that plaintiff had made use of the instrument there: Held, that no delivery was shown, and the gift incomplete; distinguishing Wade v. Brown, 42 Iowa, 647, and Pierson v. Husy, 19 Iowa, 114.-[ED.

Appeal from Decatur district court.

Action to recover possession of a piano which had been levied upon by the defendant, as sheriff, by virtue of an execution against N. T. Willey. There was a trial to the court, a finding of facts, and judgment for the defendant. The plaintiff appeals.

M. M. Kellogg and J. C. Mitchell, for appellant.

Warner & Bullock, for appellee.

SEEVERS, J. 1. The material facts found by the court are: First, that before the levy N. T. Willey sold the piano to Mrs. F. G. Tuttle. Second, the sheriff being about to or having garnished Mrs. Tuttle, as the supposed debtor of said Willey, she said to him that she did not wish to get into a law suit, and that he "might levy upon the piano," and pointed the same out to him; that the sheriff then levied on the piano as the property of F. G. Tuttle. Third, that the plaintiff claimed the piano had, before the levy, been given to her by Mrs. Tuttle, but "that at the time of the levy the piano was in the possession of F. G. Tuttle; that no delivery had been made to the plaintiff.

The errors assigned are: First, that the court erred in finding there had been no delivery to the plaintiff. The piano was in the house of, and in the possession of, Mrs. Tuttle at the time the gift was made. The plaintiff was then living

with her father, N. T. Willey, and his family, in the house of Mrs. Tuttle, who is the plaintiff's grandmother. There was no change in the possession after the gift. The plaintiff used the piano afterwards, as she did before. Some six months before the levy Mr. Willey and his family, including the plaintiff, moved into another house. The piano remained in the house of Mrs. Tuttle, and was there at the time of the levy.

That the plaintiff had the right to use the piano is true, but use and possession, or the right of possession, are different things.

We fail to find any evidence that the plaintiff had or was given dominion over the piano, and herein lies the distinction between this case and Wade v. Brown, 42 Iowa, 647; for what constitutes a delivery depends "largely upon the character and situation of the property." In the cited case the property consisted of cattle running at large on the prairie. Dominion over the cattle was given by the seller to the purchaser, and this was all that was required. In the case at bar there was a gift followed by use, but we are unable to find there was a delivery. There were no words or acts of Mrs. Tuttle which indicate delivery. It is undoubtedly true that a gift unaccompanied by delivery is void. It cannot be enforced either at law or equity. Such delivery may be constructive, but it must be such as the "nature of the thing and its actual position requires." 1 Parsons on Contracts, 434, 435. Now here there is nothing but the gift and the use; but the nature and position of the property required more than this. Something more definite could have been done and was demanded. The plaintiff, was not a resident of the house where the piano was. Her relationship to Mrs. Tuttle sufficiently accounted for the use. In Pierson v. Husy, 19 Iowa, 114, the gift was made by the plaintiff's father some years before the controversy arose, and the piano, in that case, had been placed in the parlor of his house "with his furniture, but that it has ever been hers (plaintiff's) exclusively, and under her sole and exclusive control." In this case it is clear there was a delivery. There is no evidence so tending in the case at bar.

2. It is also assigned as error that the court erred in finding that Mrs. Tuttle owned the piano and that she voluntarily turned the same out to the sheriff. These assignments are not pressed in argument for the reason, it is presumed, they are matters that in no manner concern the plaintiff, which is undoubtedly true. Affirmed.

SUPREME COURT OF WISCONSIN.

CHARLES B. KELLOGG and others, Appellants, vs. ISAAC COLLER and another, Respondents.

HENRIETTA A. COLLER, Respondent, vs. CHARLES B. KELLOGG and others, Judgment Creditors, etc., Appellants.

Filed November 28, 1879.

1. In several summary proceedings supplementary to executions against the same debtor, returned unsatisfied, (R. S. §§ 3028, 3038,) such proceedings being a substitute for a creditor's bill, the creditor who first commences his proceeding and obtains service of process upon the debtor, and prosecutes the proceeding with proper diligence to the appointment of a receiver, obtains a prior lien upon the assets of the debtor; and a bona fide attempt to serve the process is equivalent to actual service in respect to priority of right, as against persons who, being chargeable with notice of the prior proceeding, commence subsequent proceedings of the same character.

2. Where the creditor instituting such a proceeding had, at the time, actual notice of the commencement and prosecution of the prior proceeding, the fact that the pendency of such prior proceeding was not shown by the records of the court, will not affect the question of priority of right. 3. K. & C. being severally judgment creditors of X., on whose judgments executions had been returned unsatisfied, K. obtained an order from a court commissioner, March 20th, citing the debtor to an examination on the 27th, and enjoining him from disposing of his property. March 21st the sheriff, in good faith, made an affidavit in due form of service of the order on the debtor on the 20th; but in fact the copy order left with such debtor did not show the signature of the commissioner. March 22d C. obtained a like order from the same commissioner, citing the debtor to an examination on the 24th; and, on the last named day, after a hearing, M. was appointed receiver, and the debtor made an assignment to him in due form the next day; but K. was not made a party to cr notified of these proceedings. On the 27th, immediately upon the discovery by the sheriff and K. of the defect in the service of the first order, the debtor refusing the sheriff permission to amend the copy served, that officer served a correct copy and made due return of the facts before the hour at which the order was returnable, and the proceeding being prosecuted with due diligence, a receiver other than M. was appointed therein. Held, that upon these facts the court, on motion, should have ordered M. to pay the assets in his hands to be applied upon K.'s judgment.

4. The motion of K. for the relief last mentioned should have been entitled in both of the actions; but an error in entitling it only in his own action (to which C. was made a party for the purposes of the motion) is held merely technical, and no ground of reversal.

5. The statute contemplates that different proceedings may be pending at the same time, but requires creditors prosecuting prior proceedings to be notified of the pendency of junior proceedings, and that but one receiver shall be appointed; and it is the proper practice, especially where the first proceeding is diligently prosecuted, to make the appointment in that; but the plaintiff in the junior proceeding should be allowed to proceed with the examination of the debtor, etc., (under section 3033), without regard to priorities.

6. Other rules stated, by which proceedings in such cases should usually be governed.-[STATE REP.

Appeals from circuit court, Waukesha county. (433)

v3-28 (no. iv)