By the Court, McKissock, J.The charge of the learned circuit judge was erroneous. Though two persons may he *70partners as to the rest of the community, where one receives a share of the profits and yet pays no part of the expenses, that principle will not aid the plaintiff. There must, to constitute a partnership, be a vested interest in profits in the person sought to be charged as a partner, such as would for that reason alone entitle him to an account in equity against the other persons concerned in the business. This is not so where the party is entitled to compensation in proportion to a certain share in the profits. This distinction rests on salutary and substantial principles, whatever may have been sometimes said to the contrary. (Champion v. Bostwick, 18 Wend. 175 ; 3 Kent's Com. 3d ed. 32; Perrine v. Hawkinson, 6 Halst. 184; Gow on Part. 19,20.)
New trial granted.