for plaintiff to show title in himself to the money in question, we can see no reason why he could not show all of the circumstances connected with the origin and history of the deposit, and his wife's statements in derogation of her interest. And in like manner, if this theory was made out, we can see no reason for considering the rulings on any but the main question, upon which they all really turn. The argument was full, and covered a great deal of ground, but, in our view, the merits of the suit lie within a very narrow compass. The contract of a depositor with his banker does not differ in any material way from any other contract, whereby one person becomes bound to take charge of and repay another's funds. As between banker and depositor, there can be no doubt that the bank will be protected in paying out money in such way and on such terms as the depositor has authorized. And, on the other hand, where a contract is not in writing, it is equally clear that its real character and terms may be made out by testimony, and that the contracting party can lawfully control his own funds until he has disposed of them, and that it can make no difference in what name the account is kept, if it is understood to be his account, and has not been put beyond his control by some act which he cannot revoke. In the present case the testimony does not tend to show that the bank ever contracted with anybody but plaintiff, or received funds on this account which were not his funds. The case he made out, and which the jury must have found true, was that, while deposited in the wife's name, it was not intended to be for her benefit, or to be beyond the husband's right to withdraw. Any idea of a gift to her was clearly negatived. Her name was only another form for his name, and so agreed. The bank-book is no contract, and is only one of the means of indicating the state of the funds. Whatever presumptions may arise from it, and whatever protection may be given to acts innocently done on that presumption, it cannot exclude explanatory evidence. The contract was made with plaintiff, and with no one else, and the bank is answerable to him to fulfill that contract. There is no principle of law which makes the mere placing of money or property in another's name an irrevocable gift to that person. But this arrangement falls short of even this, because in law it was merely a contract between two persons that one should open an account in the name of a third person, the original depositor having a reserved right to draw the sums credited. At common law no one could sue on an express contract, except the parties to it. Under the equitable action for money had and received, a beneficiary may sometimes sue, but this can only be where the parties have given him such a right as transfers the fund to his control. The money belonging to one person cannot cease to belong to him until he does some act to dispose of it. The cases heretofore determined in this Court are stronger cases than the present in favor of plaintiff's rights: see Burtnett v. First National Bank of Corunna 38 Mich. 630, and Detroit Savings Bank v. Burrows 34 Mich. 153. In the former case the bank had no dealings whatever with the plaintiff, but held his money deposited by an agent in his own name. In the latter it was understood that the wife, in whose name the money was deposited, was to draw all the checks, but they were to be payable to the husband's order, which made the case more analogous to the present. In both the question was treated as one of fact. The decisions referred to in the opinions in those cases, as well as in the arguments, sustain that doctrine. The suggestion that the estate of Mrs. Davis is not represented in the cause has no force. In every action at law upon a contract the contest must be between the two alleged contracting parties, and if the contract and its breach are made out, the prevailing party must have judgment. The case is, in our opinion, a very plain one. The judgment must be affirmed. The other Justices concurred. ELIZABETH E. WATSON V. DANIEL M. Watson. Action for seduction-Order of proof-Previous familiarities-Neglect to make complaint-Defendant's wealth and general reputation— Statute of limitations. 1. In an action for seduction it is within the discretion of the trial judge to allow the plaintiff, before proving the seduction, to show that there had previously been acts of improper familiarity. 2. Plaintiff in an action for seduction claimed as part of her case that she had been gotten with child at a certain time, and that the illicit intercourse was kept up for some time afterwards. Held, that proof was admissible of acts of previous familiarity as bearing upon a previous seduction and as giving probability to her subsequent testimony that intercourse had been continuous. 3. An action for seduction will lie where the victim's will is overcome by the controlling influence of defendant's, especially if he holds a relation giving him authority over her. 4. Whether a case is of rape or of seduction bears upon the victim's omission to make immediate outcry or complaint, but that fact does not necessarily, as matter of law, discredit the charge in a case of seduction. It is open to comment, however, by counsel and perhaps by the judge. 5 When the truth of a charge is investigated in the light of the conduct of parties concerned, the probabilities as to what their behavior would have been if the charge had been true, must be considered. 6. A man was sued by his adopted daughter for seduction. Held, that she could not show, as an independent fact, that he had told her he had concealed a sum of money for her of which he wished her quietly to take possession in case he died before her. 7. Conduct which will reasonably and naturally warrant entirely opposite deductions ought not to be shown as bearing upon the guilt of a party. 8. Damages for seduction cannot be aggravated by evidence of what the defendant had told his victim he was worth; or by any evidence of his wealth unless perhaps such as is inferable from his general standing in the community. 9. Defendant in a civil action for seduction cannot show, by way of defense, that his general reputation for chastity has always been good. 10. The practice of asking instructions upon the evidence involving no question of law but relating only to the weight and credibility of the proofs, is discouraged. 11. An infant's right of action for seduction is not barred by the statute of limitations until after she has reached her majority, if the circumstances are such that she has to bring suit in her own name and not by another. Error to Kent. (Montgomery, J.) Feb. 8.-March 6. CASE. Defendant brings error. Reversed. John T. Holmes and Fred A. Maynard for appellant. In an action for seduction, subsequent acts of intercourse cannot be shown: People v. Clark 33 Mich. 115; People v. Jenness 5 Mich. 305; Templeton v. People 27 Mich. 501; People v. Schweitzer 23 Mich. 304; nor can defendant's wealth: Myers v. Malcolm 6 Hill 292; 2 Greenl. Ev. § 55; 2 Stark. Ev. (7th Am. ed.) 772; 2 Phil. Ev. (Cow. & Hill's Notes) 218; Abb. Trial Ev. 686; Sedgwick on Damages 544; Stevens Nisi Prius 23-56; LaSalle v. Thorndike 7 Ill. App. 282; unless for the purpose of compensatory damages: Dush v. Fitzhugh 2 Lea 307; but the defendant's good character may be shown: People v. Garbutt 17 Mich. 26; the fact that a witness has given a different account of a transaction to which he has sworn does not of necessity impeach his veracity or memory: 1 Greenl. Ev. § 469; 1 Stark. Ev. 48; Conrad v. Griffey 11 How. 491; Robb v. Hackley 23 Wend. 50; Craig v. Craig 5 Rawle 91; Berkely Peerage Case 4 Camp. 401; Morrissey v. Ingham 111 Mass. 66; Chapin v. Marlborough 9 Gray 244; Bacon v. Charlton 7 Cush. 586; Whart. on Ev. § 1100; Threadgool v. Litogot 22 Mich. 272; Howe v. Thayer 17 Pick. 97; Vanneter v. Crossman 42 Mich. 469; concealment of seduction is against the party complaining of it: 3 Greenl. Ev. (13th ed.) $ 212; Turner v. People 33 Mich. 383; see Higgins v. People 58 N. Y. 379; it is material whether the plaintiff was the victim of seduction or of rape: Cooley on Torts 228, 235; 2 Add. on Torts 1090; 2 Greenl. Ev. § 571; Abrahams v. Kidney 104 Mass. 222; Blanchard v. Ilsley 120 Mass. 487; Bartley v. Richtmyer 4 Comst. 38; White v. Nellis 31 N. Y. 405; Leucker v. Steileu 89 Ill. 545; if seduction is not, proved, damages for seduction should not be given: Hill v. Wilson 8 Black f. 123; Delvee v. Boardman 20 Iowa 446. Godwin & Earle for appellant. In an action of seduction subsequent intercourse may be shown as res gestae: Thompson v. Clendening 1 Head 287; Wood v. Georgia 48 Ga. 192; Hewitt v. Prime 21 Wend. 82; Klopfer v. Bromme 26 Wis. 372; Davidson v. Goodall 18 N. II. 423; White v. Murtland 71 Ill. 250; and defendant's pecuniary circumstances: 3 Sutherland on Damages 742; Herring v. Jester 2 Houst. 66; Parker v. Monteith 7 Oreg. 277; but not his good reputation; 15 Cent. L. J. 428; 16 Cent. L. J. 202; Delvee v. Boardman 20 Ia. 446; Maguinay v. Saudek 5 Sneed 146; action for seduction will lie even though committed forcibly: Kennedy v. Shea 110 Mass. 147; Damon v. Moore 5 Lans. 456; Hogan v. Cregan 6 Robert. 138. COOLEY, C. J. This is an action on the case to recover damages for alleged seduction. The plaintiff had been living in the family of the defendant as his adopted daughter from 1872 to 1881, being when she went there twelve years of age. She claims to have been seduced by him in the summer of 1875. She submitted to him, according to her testimony, unwillingly, and under the influence of the control which he had obtained over her by means of the adopted relation. A child was born to her in July, 1881, which she says was the fruit of their intercourse. This suit was begun October 31, 1881. The defendant denies that sexual intercourse ever took place between him and the plaintiff. The case has twice before been in this Court. See 47 Mich. 427: 49 Mich. 540. On the trial on the merits, after the preliminary questions had been determined in this Court, the plaintiff recovered judgment for $4000 damages. Before the plaintiff had given evidence of the seduction she was permitted to prove acts of improper familiarity on the part of the defendant occurring in 1878. This was objected to as being premature in that stage of the trial, and also as having no tendency to prove a previous seduction. So far as the question related to the order of proof, we think it was addressed to the discretion of the trial judge. The other branch of the objection was untenable also. It is no doubt true, as has been urged, that such acts tend rather to lend probability to the charge of subsequent intercourse than to |