The evidence offered to show that the marriage of the plaintiff with Sarah N. Howland was illegal and void, tended directly to negative one proposition upon which his action was founded; to wit, that he was legally entitled to the services of Flora N. Howland as his minor daughter. This was not in avoidance, but in direct denial and disproof of a material fact alleged by the plaintiff.

The plaintiff may indeed maintain his action upon proof of actual service, although not the legal parent; and the facts of the case, with the supposed relations between them, might have warranted the jury in inferring that the condition of actual service existed. But that was not the necessary conclusion; and the defendant was deprived of the benefit of evidence which was competent and material upon that issue also, as well as upon the question of the measure of damages.

Exceptions sustained.