farm, and seem to have furnished supplies indiscriminately. There was a difference between the witnesses as to whether the share of products was to be the net produce after deducting what was fed out and used upon the farm, or whether Wager and Otto were to have two-thirds of the gross products. In the latter part of 1877 a new arrangement was made that all should live together as one family, and put in their property together, and Otto and Wager should have the property when Coe was done with it. This arrangement continued until spring, when Wager left.

The record is very vague on several points, but enough appears to guide us to some legal result. There is testimony tending to show that what Wager did in the way of services, in the spring of 1877, was done as a volunteer, not expecting pay, but only helping as any member of a family would help on a farm. He was at this time living in Coe's family and paying no board.

Where such relations exist no wages are payable, unless the head of the family is bound to suppose they are expected. No one is bound to pay for volunteered services rendered under circumstances which do not fairly indicate an expectation of reward. So far as this record shows, the inference that Wager and his wife should pay board is quite as natural as that which would require pay for his work. It is not claimed that any board was due, and it is certainly not so unlikely that no wages were due as to authorize that fact to be determined by the court, without leaving it to the jury. St. Judis v. Vandenbury, 31 Mich. 287.

Inasmuch as it would seem the relations between the parties were such, under the special contract declared on, that Coe was lessor and Otto and Wager lessees, it would seem that the duty under the lease lay on the lessee to deliver his share to the lessors, and not on him to parcel out the produce to them. Moreover, it would seem this was a joint contract, and it is not clear how Wager alone could sue on it. If he has any grievance it is that Coe got possession of some of his property and appropriated it. For this he could waive trover, and sue in assumpsit, but he must show just what has been so used. Under this record, if it contains all the testimony, we do not discover on what basis any verdict could be rendered for this share. It may be there was more definite proof. The exceptions are broad enough to cover this objection.

As the case must go back for a new trial, it becomes neces

sary to consider another point on which we think there was a misdirection.

We think it very clear that whatever may have been the validity or invalidity of the contract, that the parties should live in common in expectation of Coe's property, there can be no recovery back of anything that was by common consent used in the common interest, so long as the parties lived on those terms. Each would be estopped by his daily acquiescence from claiming that he should be paid for either services rendered or articles consumed. No contract to refund can be implied in any case against the distinct understanding of the parties on which they have acted in this way. If it was understood when they made this new arrangement that the grain or other articles belonging to Wager should go into this common stock, the utmost that he can claim would be so much of it as was not consumed with his assent in the common service. If there can be any broader claim for a proportionate allowance for what he may have furnished beyond his share, (upon which we need not pass,) Otto as well as Coe must be a party to such an inquiry, unless there have been dealings not hinted at in the record. These matters were not distinguished, as we think, in such a way as to guide the jury.

The judgment must be reversed, with costs, and a new trial granted.

(The other justices concurred.)

The decree for alimony in this case awarded the wife one-third of the property of the husband, permitting him to elect to pay $10,000 in land; a reference being ordered to a commissioner to set off land worth at a fair valuation that sum, and the papers failing to show that the commissioner had adopted an erroneons basis, or that wrong had been done, appeal is dismissed without costs.-[ED.

Appeal from Berrien.

Edwards & Sherwood, for complainant.

Edward Bacon and Spofford Tryon, for defendant.

COOLEY, J. The general intent of the decree for alimony in this cause was to award to the divorced wife one-third of the husband's property. To reach an apportionment the husband was permitted to elect to pay $10,000 in land, and

a reference was ordered to a commissioner to set off lands worth, at a fair valuation, that sum. But the proper amount of alimony had been determined from the evidence taken in the cause, and if the woman's share were to be set off by some new estimate, after values had changed, great injustice might result. This was not contemplated by the court.

We find nothing in the papers sent up on this appeal to indicate that the commissioner adopted an erroneous basis for his action, or that wrong has been done. The appeal will therefore be dismissed. No costs will be awarded on this dismissal, but as the respective interests of the parties are now fully determined, any further litigation should be at the expense of the party who shall be found in fault in causing it. (The other justices concurred.)

WILLIAM WOOLSTON vs. WILLIAM SMEAD.

Filed October 28, 1879.

In action of replevin for a buggy, defendant, claiming ownership, offered testimony showing his having previously offered to sell the same. Held, that it was competent, as showing an assertion of ownership; and as other testimony to the same effect had been received, without objection, there was no prejudice to plaintiff. Where plaintiff offered in rebuttaĺ evidence in contradiction of defendant's testimony, but which practically placed his right to recover on a different basis from that on which he had rested, held, that he was not entitled to its admission as matter of right, and it was not error to refuse it.-[ED.

Error to Clinton.

H. & H. E. Walbridge, for plaintiff in error.

R. Strickland, for defendant in error.

CAMPBELL, C. J. Plaintiff replevied a buggy from Smead, which the latter was shown to have taken, so far as the record shows, without any right, from plaintiff's barn. The defence rested on the question whether the buggy at the time was in possession of the plaintiff, or in possession of his son, James Woolston.

Upon this fact there was evidence before the jury, and the charge of the judge was as strong in favor of the right of a party in possession as against a trespasser as could very well be made. If there was no error in other respects there was nothing to complain of.

The defence undertook to show, and the jury were satisfied, that father and son lived together, and that the buggy belonged

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to the son, and was actually kept by him, and not by his father, in the building from which defendant took it.

The son's title and possession were shown by the declarations and conduct of the father, and by the exercise of continued acts of ownership by the son. Among other things, this testimony of the acts and declarations of both, in connection with the actual use and possession of the buggy, related to injuries and repairs to the buggy upon various occasions. Evidence was received without objection that the buggy, was broken at a camp-meeting in 1878, and that it was then in possession of James, who had it repaired as his own, and at that time offered to sell it as his own. After this testimony was all in a witness named Chamberlain was asked, and allowed under objection to show, the offer by James to sell the buggy just after it was broken.

This testimony did not tend to show actual ownership, but it did tend to show the assertion of ownership, which was some evidence that he did not at the time act in recognition of his father's title. It was of the same quality as the testimony received of the conduct of the father showing the nature of his possession.

The same testimony on the precise point had already been received from other witnesses, without objection, and no ground for this objection was given. The objection was made to the question and not to the answer, and it was certainly possible for such acts to have been done so as to bear upon the acquiescence of the father. We do not see, under the circumstances, that the testimony may not have been received without doing any prejudice to plaintiff, and it is not made clear to us how he was damnified by its reception after allowing the same fact to be shown by testimony not objected to.

It is also assigned as error that the court refused to allow plaintiff, in rebuttal, to show that he was himself the purchaser of the property shown by the defence to have been purchased by the son. Upon this there is more plausibility than force in the ground stated.

There is no doubt, and it was so held below, that a person who has a present right of possession may maintain replevin without any further valuable interest; and it is also true that possession is prima facie lawful. But in this, as in other actions, a plaintiff ought to make out in his opening the case on which he chooses to rest his rights, unless what the defendant proves is something more than a disproof of his claim thus shown. In the present case his apparent posses

sion was not the question in issue, but was merely introduced as evidence of his right to possession. He did not undertake to show a purchase directly, but he. did undertake substantially to show that he controlled and used it, and had done so for some years; but he also showed, on his direct examination, that his sons used it as well as himself. It seems to us that, after going this far, he was bound, if he desired to rest on any proprietary or special interest, to show what interest he claimed.

The defendant sufficiently denied and did not merely avoid his possession by matter raising a new issue. He disproved plaintiff's possession by showing possession in James Woolston. The attempt of plaintiff in what he called rebuttal was practically to make out a different right from that on which he rested his case in the first instance; and it necessarily would have opened the door for a new controversy, in which defendant might have met this proof by a still different showing on his own behalf. It is undoubtedly not very easy to determine in all cases what is a new case and what is rebuttal, but we think in such an action as this, where there may be room in many instances for substantial damages for the detention or for injuries to the property, there is no injustice in requiring the plaintiff to make an honest showing of his rights. It would, we think, be the duty of a trial court to give him the benefit of any fair doubts by allowing testimony wherever justice requires it, and in the present case it would not have been improper. But the plaintiff in this case undertook to use some care to avoid showing more than the merest presumption, and evidently prepared in advance to get the supposed benefit of the last word by re-offering himself as a witness in rebuttal, instead of making a frank showing in the first place. He did not ask relief by way of favor, but of right, and we think he could not do this.

The judgment must be affirmed, with costs. (The other justices concurred.)

NELSON DANIELS vs. ADELBERT ALDRICH.

Filed October 28, 1879.

In an action for breach of warranty of a horse, held, that evidence of his vicious acts occuring eight or nine months after the warranty, causing his death, in connection with evidence that such acts were a common habit, was proper, as was also evidence of such acts occurring three years. prior to the warranty.