Opinion of the Court. that an agent or servant, whose compensation is measured by a certain proportion of the profits of the partnership business, is not thereby made a partner, in any sense. So an agreement that the lessor of a hotel shall receive a certain portion of the profits thereof by way of rent does not make him a partner with, the lessee. Perrine v. Hankinson, 6 Halst. (11 N. J. Law) 181; Holmes v. Old Colony Railroad, 5 Gray, 58; Beecher v. Bush, 45 Michigan, 188. And it is now equally well settled that the receiving of part of the profits of a commercial partnership, in lieu of or in addition to interest, by way of compensation for a loan of money, has of itself no greater effect. Wilson v. Edmonds, 130 U. S. 472, 482; Richardson v. Hughitt, 76 N. Y. 55; Curry v. Fowler, 87 N. Y. 33; Cassidy v. Hall, 97 N. Y. 159; Smith v. Knight, 71 Illinois, 148; Williams v. Soutter, 7 Iowa, 435, 446; Boston & Colorado Smelting Co. v. Smith, 13 R. I. 27; Mollwo v. Court of Wards, and. Badeley v. Consolidated Bank, above cited. In some of the cases most relied on by the plaintiff, the person held liable as a partner furnished the whole capital on which business was carried on by another, or else contributed part of the capital and took an active part in the management of the business. Beauregard v. Case, 91 U. S. 134; Hackett v. Stanley, 115 N. Y. 625, 627, 628, 633; Pratt v. Langdon, 12 Allen, 544, and 97 Mass. 97; Rowland v. Long, 45 Maryland, 439. And in Mollwo v. Court of Wards, above cited, after speaking of a contract of loan and security, in which no partnership was intended, it was justly observed: "If cases should occur where any persons, under the guise of such an arrangement, are really trading as principals, and putting forward, as ostensible traders, others who are really their agents, they must not hope by such devices to escape liability; for the law, in cases of this kind, will look at the body and substance of the arrangements, and fasten responsibility on the parties according to their true and real character." L. R. 4 P. C. 438. But in the case at bar no such element is found. Throughout the original agreement and the renewals thereof, the sum of $10,000 paid by Perry to the partnership, and for Opinion of the Court. which they gave him their promissory notes, is spoken of as a loan, for which the partnership was to pay him legal interest at all events, and also pay him one tenth of the net yearly profits of the partnership business if those profits should exceed the sum of $10,000. The manifest intention of the parties, as apparent upon the face of the agreements, was to create the relation of debtor and creditor, and not that of partners. Perry's demanding and receiving accounts and payments yearly was in accordance with his right as a creditor. There is nothing in the agreement itself, or in the conduct of the parties, to show that he assumed any other relation. He never exercised any control over the business. The legal effect of the instrument could not be controlled by the testimony of one of the partners to his opinion that "it was capital he had in the business the same as ours; we owed it to him; of course we owed it to him if we did not lose it." Upon the whole evidence, a jury would not be justified in inferring on the part of Perry, either "actual participation in the profits as principal," within the rule as laid down by this court in Berthold v. Goldsmith; or that he authorized the business to be carried on in part for him or on his behalf, within the rule as stated in Cox v. Hickman, and the later English cases. There being no partnership, in any sense, and Perry never having held himself out as a partner to the plaintiff or to those under whom he claimed, the Circuit Court rightly ruled that the action could not be maintained. Pleasants v. Fant, 22 Wall. 116; Thompson v. Toledo Bank, 111. U. S. 529. Judgment affirmed. MR. JUSTICE BROWN, not having been a member of the court when this case was argued, took no part in its decision. VOL. CXLV-40 Cases not Otherwise Reported. CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1891, NOT OTHERWISE REPORTED, CASES DISMISSED IN VACATION TO RULE 28. INCLUDING No. 959. ADAMS v. FREEDMAN'S AID AND SOUTHERN EDUCATION SOCIETY. Appeal from the Circuit Court of the United States for the Eastern District of Tennessee. July 24, 1891: Dismissed, pursuant to the 28th rule. Mr. Xenophon Wheeler for appellants. Mr. William Henry De Witt for appellees. No. 1201. ADAMS v. UNITED STATES. Error to the District Court of the United States for the District of Kansas. October 19, 1891: Judgment reversed, and cause remanded for new trial, on motion of Mr. Solicitor General for defendant in error. Mr. J. R. Shields for plaintiff in error. Mr. Attorney General for defendant in error. No. 110. ALEXANDER V. GLENN, TRUSTEE. Error to the Circuit Court of the United States for the Western District of North Carolina. November 20, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. W. E. Earle, Mr.W. D. Davidge and Mr. Reginald Fendall for plaintiff in error. Mr. Charles Marshall and Mr. John Howard for defendant in error. No. 102. AMADOR QUEEN MINING COMPANY V. DEWITT. Error to the Supreme Court of the State of California. November 17, 1891: Dismissed, with costs, pursuant to the 10th rule. Mr. William M. Stewart for plaintiff in error. No appearance for defendant in error. Cases not Otherwise Reported. No. 290. AMERICAN ARTIFICIAL STONE PAVEMENT COMPANY v. VULCANITE PAVING COMPANY. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania. March 28, 1892: Decree reversed, with costs, per stipulation, and cause remanded to be proceeded in according to law. Mr. Hector T. Fenton for appellant. Mr. George Harding for appellees. No. 337. ATTORNEY GENERAL OF MASSACHUSETTS v. WESTERN UNION TELEGRAPH COMPANY. Appeal from the Circuit Court of the United States for the District of Massachusetts. January 28, 1892: Dismissed, per stipulation. Mr. A. E. Pillsbury for appellant. Mr. Wager Swayne for appellee. No. 1220. AYRES v. MANNING. Appeal from the Circuit Court of the United States for the Southern District of Illinois. April 1, 1892: Dismissed, with costs, on motion of Mr. John M. Harlan for appellants. Mr. G. W. Smith and Mr. John M. Harlan for appellants. Mr. Samuel P. Wheeler for appellees. No. 1512. BAILY v. SUNDBERG. March 7, 1892: Petition for a writ of certiorari to review the decision of the Circuit Court of Appeals for the Second Circuit denied. Mr. F. C. Partridg and Mr. Willard R. Cray for petitioners. Mr. John Lind for respondent. No. 199. BANQUE FRANCO-EGYPTIENNE v. BROWN. Appeal from the Circuit Court of the United States for the Southern District of New York. March 1, 1892: Dismissed, per stipulation. Mr. Joseph H. Choate for appellants. Mr. Francis Lynde Stetson, Mr. Joseph Larocque, Mr. Frederic B. Jennings and Mr. Charles H. Russell, Jr., for appellees. No. 271. BARNEY V. WATERBURY. Error to the Circuit Court of the United States for the Southern District of New |