Krug

— The defendants are husband and wife. This action was brought to recover from the wife the value of lumber alleged tb have been purchased by her from the plaintiff through the agency of her husband.

The case was tried by a jury. Verdict and judgment for $5,044.98. On motion of defendants, a new Uml was *239 granted, and this appeal is from the order granting a new trial.

The grounds upon which the new trial was asked were: 1. Insufficiency of evidence; 2. Errors of law; and 3. That the verdict was against law. It appears, however, from the opinion of the lower court, brought up with the transcript, that the new trial was granted on the ground of insufficiency of the evidence to prove the agency of the husband; and whether it was so is the principal question for decision.

The following facts were proved by the plaintiff or admitted by the defendants: —

At the time of the marriage of the defendants, in 1860, the land described in the complaint (about 340 acres) was the separate property of the wife, and has ever since remained so, and the husband and wife have ever since resided thereon, and during all that time the husband has used and cultivated the land, principally in…