The Express.
London, England, 1846-11-14 00:00:00

nee with. Loirstlian (who had suffered judgmer:„ to go by
default) Tina defendant Nesham was origisddly the pro-
prietor of the paper; and he sold it to eertan persons, who
afterwards atortgaged it to him. From that time he con-
tinued to hold an interest in the profits of the publication;
and on the 15th June, 1844, he agreed to sell the paper to
the other defendant for a sum of 1,5001., which was to pai
be d
in *recourse of seven years from the date of the agreement. By
thatagreement Neale= guaranteed that the clear y early profits
arising from the paper should be 1601., which Lowthiau was to
receive over and above the principal and interest to be paid to
Nesham. In consideration of that guarantee, Lowthian
inedertook to pay all the surplus profits to Nesham, should
they not amount to more than 5001. during the period of
seven years. If the profits exceeded 5001., he (Lowthian)
was to discharge the liabilities of the paper, and if otherwise
Nob= was to pay them.—Mr. Sergeant Channel! having
TrEtlthe owe on behalf of the plaintiff, and Mr. Serj cant
rd on the part of the defendant,
The Court said the question was whether the two defend-
ants were jointly interested in the concern at the tim., the
goods were supplied by the plaintiffs. The agreement
entered into was such as to constitute Megrim a partner as
reganled third persons. It was clear according to that
agreement that it at the end of seven years the profits had
not amounted to 1,5001., Northam was to remise nothing,
In this case it was material to ascertain what was the inte-
rest that Neabam reserved to himself during the seven
years. It was this, that he should take the profit-4 which
the paper should produce over and above 1501. a-year in part
payment of his 1,5001., and if the paper did not yield more
than 1501. he was to get nothing. Looking at the substance
of the agreement, it was clear that the defendants were
jointly interested in the profits of the paper, and that WAS
sufficient to constitute a partnership, although there might
have been a stipulation that they should not incur any of
the losses. The plaintiff was therefore entitled to the judg-
ment of the court—Judgment for the plaintiff.

BAIL CO U RT.
THE QUEEN E. HENRY CALWELL, CHARLES CALWELL,
AND HENRY CARR. CERTIORARL—MRAULT IN THE
QUEEN'S PRISON.—Mr. Ballantine moved for a certiorari to
bring up an indictment which had, been found in the Central
Criminal Court. The indictment was preferred by Philip
Herring, a prisoner in the Queen's Prison, against the de-
fendants for an assault while executing the orders of the
governor. It was urged that, although it was not usual to
remove indictmenM for assault into this court, yet as the
question would turn upon the construction of the rules of
the prison, as authorised by the late statute, the power of the
Secretary of State to make them, and the manner in
which they were carried out, it was a fit
in
eared ase
for a certiorari. The prosecutor, Mr. Herring, apps
person, having been brought up by habeas corpus in custody
of the turnkeys of the Queen's prison. He complained that
he had not had a copy of the affidavit ; that it had been re-
fused to him by the solicitor of the defendants.
Mr. Ballautine : The solicitor gave it to you to read.
Mr. Justice Patteson: When it is filed you can have a
copy. The question is, whether this is a proper case to be
removed into this court. Can you contradict the facts ?—Mr.
Herring : I contend that I have committed no offence.—Mr.
Justin: Patteson : That is a question for the jury.—Mr.
Herring hoped he should have time to answer the affidavit.
—Mr. Justice Patteson : That will only put you to greater
expense. Can you deny that the facts arise out of an assault
committed in the Queen's prison ?—Mr. Herring : No ; but
I deny that I have committed any offence.
Mr. Justice Patteson : That is not the question. It is,
whether there has been an assault in the Queen's prison, and
it will be for the jury to decide whether you have committed
an off :nee.—Mr. Herring then proceeded to urge that if this
application were allowed it would cause an expense which he
was unable to meet, and the chances were that he would
never be able to bring the case to trial. He hoped the trial
might be allowed to take its ordinary course.
Mr. Justice Patteson : In the Central Criminal Court
cases of assault are seldom heard before the judges.—Mr.
Herring went on to contend that there was nothing different
in this to ordinary cases of assault. He had brought an
action against the keeper of the Queen's Prison for his illegal
conduct towards him; and if this application were granted
that trial would come on first, which he wished to avoid.—
Mr. Ballentine : A writ was issued six months ago, but he
has not yet declared.
Mr Justice Patteson : Does that action arise out of the
same transaction ?—Mr. Herring : No, my lord.
Mr. Justice Patteson : If the indictment is removed by
certiorari, it will be tried before that action, for you have not
yet declared.—Mr. Herring then proceeded to state circum-
stances which he thought justified him in stating that he
was an object of persecution by the officers of the Queen's
Prisen—among others, that a lady wbo bad for some years
been the only organ of communication between him and his
legal advisers, in certain proceedings in which he had been
engaged, had lately been denied access to him. He also
stated that the present governor had committed more pri•
scalers to solitary confinement in the three years he had
held the office, than had been done in fifty years
before. In coming here to defend himself, he had
been subjected to the most intrusive annoyance
on the part of the turnkeys who accompanied him, and he
could not speak to any one without their obtruding them-
selves upon him.
Mr. Justice Patteson said it was not a usual occurrence to
remove a case into this court from the Central Criminal
Court, because the judges were accustomed to sit there. In
this case it was clear that there had been an altercation be-
tween the prosecutor and the governor of the Queen's
Prison, and the former stated that he had been ill-used.
Perhaps if Mr. Hudson had been in court, he would have
told R different story, and stated that this person had in-
fringed the rules of the prison, and given much trouble. It
was plain that questions must arise as to the real meaning
of the rules, the power which was given under the act to make
them, and whether they had been perverted or infringed. It was
just such a case as the Court was imperatively called on to
bring up by certiorari, that there might be an opportunity
for the judge who tried it to be set right by the full court,
for there could be no motion for a new trial in a case in the
Central Criminal Court. There must be sufficient bail, more
than in the usual cases, and the defendants, on whom it now
lay, must bring the case forward as soon as possible.
Mr. Herring applied to have an order indorsed on the
habeas under which he was brought up, that he should not
be subjected to such treatment as he had already suffered from
the persons in whose custody he was. He had been refused
leave to get some refreshment while he was suffering
from illness. Mr. Justice Patteson I cannot make any
such order.

JUDGES' CHAMBERS, BERM
Before Mr. Baron Platt.

e•-INN.

......-.....-
MANOPACTITRING RAILWAY EIYGINEERB.—FLOWERDAY
a. Mmdsosr.—This was a summons before Mr. Baron Plstt
to set aside a judgment on the ground of defective notice of
declaration. Judgment having been signed by default. The
ease was remarkable as showing how railway architects,
surveyors, and engineers, were manufactured during the
railway mania of 1845. The defendant being described as
of Symond's-inn. Chancery-lane, architect, surveyor, and
civil engineer. The plaintiff is described in the same plead-
ings of Pitfield-street, Horton New-town, pork butcher.
And from the affidavits put in, it appeared that the defend-
ant undertook to teach the plaintiff's son the science of an
architect, surveyor, and civil engineer ; the understanding
being that the plaintiffs son was to be perfected in a very
short space of time for railway surveying. An indenture
was drawn up to that effect, and the sum of 121. 10s. was
paid to the defendant for costs of that indenture, one of the
covenants being that Flowerday, jun., should keep the de-
fendant's secrets for the space of three years. The plaintiff
was to pay the sum of 491. by monthly instalments of 11. per
month, for having his son perfected and inducted into the
mystery of railway engineering. The sum of 31. was paid
on account, but no benefit being derived, as no railway
business was transacted, the plaintiff sought to repudiate
the agreement, and to recover back the sum of 121. 10s. paid
for the inaontures.
Upon the part of the defendant, affidavits were put in
from which it appeared that, according to his statements, the
first notice of declaration had been set aside on the ground
of informality, and that he did not receive any further notice
until the 9th instant, when the sheriff's officer was put in
• of his goods for 151. lls., the alleged debt, and
1. 15a. costs, and he denied having received any renewed
notice of declaration, emeept what he presumed to be a mere
copy of the original notice, with the word six following the
words one thousand eight hundred and forty, and that the
word six had been left out in the original notice; that he
final the laid notice amongst his coals ; that he subsequently
expressed his determination to defend the action, and verily
believes be has a good defence on the merits; that he depo-
sited with the Sheriff of Middlesex 231. 125., debt and costs,
sander a smitten protest.
Mr. Nixon now submitted, upon the affidavits just read,
that the judgment which bad been entered must he set aside.
Mr. Baron Platt wished to know if the parties really
wished him to believe that the notice was discovered
amongst the coals—Mr. Nixon Such is the averment in the
affidavit.

Mr. Baron Platt considered that the notice was good, both
in form anti substance.—Mr. Nixon mid that the defendant
further deposed that he WWI in the daily habit of looking
into hie letterbox, and there was no notice to be found,
dated the 6th of November.

Mr. Ward,tiepfaiiiiirs solicitor, said he hal affidavits
to the notice having been served upon that day, and there
-was then time to plead, if the defendant had been so ad-
-vised.—The of davit of Mr. Ward's clerk was then read, in
-which he declared that he duly served the notice on the sth
dastant, y putting it into the letter-box.
Mr. Baron Platt: Then it was not dropped amongst the
dolls ?—Mr. Ward : Oh, no.
Mr. Baron Plan said there could be no doubt that the
entice had been ipeoperly served, hut on the defendant's affi-
davit there was a declaration that be had a defence to the
aierits, and he would therefore give the defendant an oppor-
tu ity of coming ,in to plead, on the paying of coats of the
judgment, and allowing the money, m the hands of the
plaintiff, to re:Wails security.