including the day of trial, and to determine and adjudge the amount thereof, and incorporate the same into the judgment as a part thereof, in case judgment is rendered for the plaintiff, and the docket shall contain an entry of the amount so determined. § 5518. When cattle or live stock are taken on execution, the justice may allow the constable a reasonable compensation for keeping the same. § 5419.

These several provisions clearly indicate that the lien acquired by virtue of a writ of attachment is to remain in force only a reasonable time after the rendition of the judgment. They are to be safely kept to satisfy the judgment, and the plaintiff could not, after recovering a judgment, with the right of issuing execution thereon, permit the property to remain indefinitely upon expense in the officer's hands under the writ of attachment. The statute farther provides that after an appeal has been taken, on a proper showing thereof being made to the officer holding the execution, he shall forthwith release the property that may have been taken, or the body of the party against whom the writ was issued. $ 5440.

If an appeal releases property taken on an execution, why should property held on an attachment not be released? The object a plaintiff has in attaching property is to secure satisfaction of any judgment he may thereafter recover, and property is taken upon execution for the satisfaction of the judgment. When, however, an appeal is taken, the bond given is presumed to insure satisfaction and there is no longer any object in retaining the property levied upon for such a purpose, and certainly this applies with at least equal force to property held under an attachment.

It is true the statute does not in express terms provide for the release of property held upon attachment as it does when held under execution; but was this necessary? The lien by virtue of an attachment holds only a reasonable time after a judgment has been recovered and a right to execution exists, and this the statute permits being done immediately upon the recovery of judgment in such cases. We do not wish to intimate that execution must issue at once on rendition of

judgment, or even within the time limited for the taking of an appeal, in order to protect the lien, or in cases where the plaintiff as the aggrieved party appeals. But where the defendant appeals, before the execution has been issued and the property attached taken thereon, we cannot suppose that the legislature contemplated that the property should be retained upon expense during the pendency of the appeal. In my opinion, whether the property is held under the attachment or execution, the appeal, when taken, causes its release, and the plaintiff thereafter looks to the appeal bond for his protection.

Any other rule, it seems to me, would work great injustice, as the owner of the property would not only be deprived of its use during the pendency of the suit, but the expense of keeping it in many cases would exceed the entire value thereof, and thus the judgment remain unsatisfied.

I am also of opinion that it may fairly be inferred from the record in this case that the property levied on was released during the pendency of the suit in justice's court. Sec. 5277 provides that the goods and chattels levied upon shall not be removed if a bond is given conditioned that they will be produced to satisfy any execution that may be issued or any judgment recovered by the plaintiff in the attachment. So if any person other than the defendant claims the goods. attached, he may execute a bond, conditioned that in a suit to be brought thereon, he will establish ownership therein at the time of the seizure. § 5278. And upon either of such bonds being given the constable shall deliver up the property to the obligor. $5279. And as the bond provided for in Sec. 5278 might be given after the return of the writ, the fact that such a bond had been given would not appear thereby.

As already referred to, the cost of keeping any animals attached may be proven on the trial and allowed, and the docket of the justice is to contain any entry of the amount thereof. § 5518. The docket of the justice, as appears by his return, contains no such entry, although animals were taken by the constable; and as he would have no authority to work them for their keep, even did it appear that he could

have done so, we should, I think, assume that the animals taken by the constable were not held by him under the attachment at the time of the rendition of the judgment. If they were not, defendant's motive in executing the bond could not have been the existence of such property in the constable's hands under the attachment. If they were in the constable's hands, and the taking of an appeal and giving a bond thereon operated as a release of the property, of which I have no doubt, then their motive, based upon a retention of the property by the constable, was wrong and could not benefit them.

If the property was in the constable's hands, and the effect of the appeal was to release it, surely this would be such an injury to the plaintiff as would entitle him to maintain this. action. If it was not in the officer's hands, the delay caused by the appeal may have caused the plaintiff an injury. Had no appeal been taken, a prompt and vigorous prosecution of his remedy by execution might have enabled him to find property to satisfy the judgment, and which a delay might have deprived him of.

But even did it appear from an inspection of the files and record of the justice that the judgment was so far void that it could be attacked collaterally, I am by no means satisfied that the plaintiff could not maintain this action. The defendant therein was not willing to risk his rights upon the assumption that the judgment was absolutely void and could afford no advantage to the plaintiff. Had he done so the plaintiff might have abandoned his judgment, commenced another action, and collected his claim. The defendant, by taking an appeal, prevents this by agreeing in his bond to prosecute his appeal with all due diligence to a decision in the Circuit Court, and if a judgment should be rendered against him therein, to pay the same, or if the appeal should be discontinued or dismissed, then that the judgment of the justice should be paid. Here was an agreement entered into voluntarily. It has not been observed. Why then should it not. be enforced according to the letter thereof? The defendant has obtained the benefit of delay by this means and injured

the plaintiff to a corresponding extent. The defendant at the time he took this appeal may have had sufficient goods and chattels out of which plaintiff could have collected his claim either in that action or in another which he might have brought. The delay may have cut off this right, or barred his claim under the statute of limitations.

View the case in any way, I am of opinion the defense relied upon cannot be sustained, and that the judgment should be affirmed with costs.

The other Justices concurred.

LUTHER BEECHER ET AL. V. EDWARD A. BUSH ET AL.

Constructive partnership.

A partnership cannot be implied, as matter of law, from a business relation, if the parties thereto have not made or intended to make a partnership contract and if they have done nothing to estop them from denying the existence of a partnership.

Partnership involves community of interest in some lawful commerce or business for the conduct of which the parties are mutually agents for each other but with general powers within the scope of the business, which powers they can restrict by agreement to the extent of making one the sole agent of the rest and of the business.

An arrangement by which one man "hires the use

of another's building

from day to day and opens and keeps it as a hotel, paying the owner daily a sum "equal to one-third of the gross receipts and gross earnings," does not of itself constitute them partners.

There can be no such thing as a partnership as to third persons when there is none as between the parties themselves, and third persons have not been misled by concealment of facts or by deceptive appear

auces.

The test of partnership, as between the parties themselves, is their intent.

Participation in profits does not of itself make one a partner.

Error to Superior Court of Detroit. Submitted October 29, 1880. Decided January 12, 1881.

ASSUMPSIT. Defendant brings error. Reversed.

Henry M. Cheever (John Atkinson and Jos. P. Whittemore with him) for plaintiffs in error. Community of interest in the profits is the only essential to a partnership (Lindley on Partnership, 10); an agreement to carry on the business and divide the gross earnings equally does not constitute a partnership as to third persons: Ambler v. Bradley 6 Vt. 119; so also where the share of gross earnings was to be paid as compensation: Dry v. Boswell 1 Camp. 330; nor does a share in profits as compensation for services make one a partner: Reed v. Murphy 2 Greene (Ia.) 574; nor an agreement to pay, instead of a commission, the entire proceeds of a sale less a certain proportion: Benjamin v. Porteus 2 II. Bl. 590; nor an agreement to divide profits with a broker on a sale made by him of wheat bought with the money of the other party: Hanna v. Flint 14 Cal. 74; nor an agreement to share gross returns: Gibson v. Lupton 9 Bing. 297 (23 E. C. L. 588); French v. Styring 2 C. B. (N. S.) 357; Mair v. Glennie 4 M. & S. 240; Wilkinson v. Frasier 4 Esp. 182; nor an agreement to share or divide either profits or returns: Blanchard v. Coolidge 22 Pick. 151; Cutler v. Winsor 6 Pick. 335; Denny v. Cabot 6 Met. 82; Turner v. Bissell 14 Pick. 192; Newman v. Bean 21 N. H. 93; Miller v. Van Beuren 15 S. & R. 137; Hodges v. Dawes 6 Ala. 215; Ogden v. Astor 4 Sandf. 311; Vanderburgh v. IIull 20 Wend. 70; Burckle v. Eckhart 3 Comst. 132; Bradley v. White 10 Met. 303; Polk v. Buchanan 5 Sneed 722; Moore v. Smith 19 Ala. 774; Bull v. Schuberth 2 Md. 38; Bowman v. Bailey 10 Vt. 170; Fawcett v. Osborn 32 Ill. 411; Rawlinson v. Clarke 15 M. & W. 292; Barklie v. Scott 1 Huds. & Br. 83; Stocker v. Brockelbank 3 Mac. & G. 250; nor an agreement to pay a mate a specific share of the profits of the voyage: Coffin v. Jenkins 3 Story 108; Wilkinson v. Frasier 4 Esp.