The Express.
London, England, 1867-02-23 00:00:00

COURT OF QUEEN'S BENCH.-FEB. 22.

After Term Nisi Pius sittings at Guildhall.—(Before
the Lord Chief Justice and a Special Jury.)
THE QUEEN r. TELLY.

Attar our report left yestenley,
Mr. Serjeant Baßeaune, in addressing the jury for the
defendant, described it as a very tiresome and disgusting
case. The defendant had pleaded first not guilty, and the
question arising upon that plea would be whether or not
circumstances bad not occurred which justified the defend-
ant so as to render him not amenable to the charge of libel.
The Lord Chief Justice—You mean a privileged commu-
nication.

Mr. Serjeant Ballantine—Yes. If the circumstances of
the case negatired any malice then it was incumbent on
the prosecutor to show it. The prosecutor commenced by
libelling Mr. Hamilton for the expert* statement made
before the magistrate, which was afterwards published and
circulated in the newspapers. This was as much a libel
as if Mr. Hay had banded the statement in a letter to
the newspapers. The question was, whether the report
was or was not justifiable.
The Lord Chief Justice—lf the application before the
magistrate was made without reasonable or probable cause
and maliciously, the remedy watt of a different character,
and not by libelling in return. The publication of such a
report was not by the person who made the application,
but if he takes it upon himself to circulate it then it
would be libel.

Mr. Sorjeant Ballantine considered that if an exparte
libellous statement was made before a magistrate or any
tribunal, and afterwards reduced into writing, either by
the medium of the public press or otherwise, the
person making it waa liable to an action for libel as much
as if he had written it himself.

The Lord Chief Justice—l shall not adopt that view.
Mr. Serjeant Ballantine then further alluded to the pub-
lication of the police-court proceedings, and his provoking
• reply. Under the circumstances, that statement was
not exaggerated, and on it he asked them to find for the
defendant. Upon the second issue the defendant under-
took to move the truth of the statements contained in the
alleged libel. One of the worst features in the ease, and
which could only be attributed to the prosecutor's inns.
nit', wan the wicked, loathsome, and abominable letters
which he had put in, in which the prosecutor charged the
father with incest, for on no other ground could they ac-
count for such conduct. The learned counsel, in a very
powerful address, said he should be able to justify the
libel, in which case they would return a verdict for the
defendant.

Several witnesses, including the Rev. G. B. Hamilton,
having been called for the defence,
The Lord Chief Justice said there was no ground
whatever for stating that Mrs. Hay was of unsound
mind. If the jury were of opinion that the husband and
wife had been separated, whether rightly or wrongly, and
that the defendant wrote this letter in reply to the terrible
and dreadful accusations that had been made against the
father, and that he acted boot fide according to his trans-
actions and without malice, and certainly none had been
proved, I shall tell the jury that it was a privileged com-
munication.

Mr. Stammers—That being so, my lord, I must submit
to a verdict for the defendant.
The Foreman—We are unanimous for a verdict of not
guilty. (Applause.)
A verdict of Not Gaily was accordingly returned.
The prosecutor, as be left the court, was hissed by the
audience.

COURT OF COMMON PLEAS.—Fsa. 22.

Sittinp at Nisi Prius in London.—(Befure Losd Chef
Justice Bovill and a Special Jury.)

FENWICC AND ANOTHIR r. OMAN.

This was en action to recover the amount of a cheque
for 187/. 19s. Ild., which had been handed to the plaintiff
but had not been presented until after the failure of Sir
Chas. Price and Co., upon whom it was drawn.
Sir Geo. Honymen, Q.C., and Mr. W. Williams,
appeared for the plaintiffs; and Mr. J. J. Powell, Q.C.,
and Mr. C. J. Matthew, for the defendant.
The facts were these:—The plaintiffs were ship and
insurance brokers, carrying on business in Abchurch Chain-
hers, and the defendant was an underwriter at Lloyd's.
There bad been frequent business transactions between
the plaintiff, and the defendant, and the custom of the
defendant was to pay by cheques to order and to cross
those cheques with the name of Messrs. Barclay and Co.,
the plaintiffs` bankers. The cheque in question was sent by
the defendant to the plaintiffs office about mid-day on Fn-
day, the 22nd June; and at that time neither of the
plaintiffs was in London, nor would be there until Mon-
day. The plaintiffs' clerk sent the cheque by Friday
night's poet to Mr. Fenwick, who was at a plam near
Leicester, and Mr. Fenwick endorsed and returned it by
the Monday morning's post. Sir Charles Price and Co.
paid all cheques presented on the Saturday, but on the
Monday morning they did not open their doors. As to
notice of dishonour of the cheque, Mr. Phillips, a clerk
of the plaintiffs', mid that he saw the defendant at Lloyd's
and told him that he would be held responsible for another
cheque, and the defendant repudiated all liability. Mr.
Phillip; said that he believed this took place on Monday,
the 25th June last. The defendant was positive that it
was not so early as the Monday, and it was agreed by
counsel that the interview should be considered as having
taken place on the Tuesday. Another circumstance was
that the cheque was not in fact presented at the bank
until the 10th July, and the defendant's contention was
that it was idle to say that there would be notice of dis-
honour before presentation.
. . •

Upon these acts the question was raised who was to lose
upon the cheque. The defendant's case was that if the
cheque had been presented within a reasonable time it
would have been paid ; whilst the plaintiffs' contention
was that there hail been no aches on their part, and that
it was reasonable to send the cheque into the country
for Mr. Fenwick's endorsement. Counsel on both sides
agreed that the question was one of very considerable im-
portance to mercantile men.
Lot d Chief Justice Bovill also agreed that the question
was of great importance, and added that it seemed to him
that it was a new question, for none of the decided cases
touched it. As to ordinary cheques, the law was clear
that the person taking them had the whole of the follow-
ing day for presentation.
. . .

A jiirytnaln said it was important that they as com-
mercial men, should know that this was established law.

Lord Chief Justice Bovill—Bnt the question now raised
was whether there was to be au extension of this term in
the event of tbe cheque being made payable to order.
Sir George Honyman urged upon the jury that it was
reasonable that if the defendant chose to draw his cheques
in a form that caused daisy in presentation, the time fur
presentation should be enlarged.
Mr. Powell, however, contended that there was no rea-
son why the time for presentation should be extended. It
was the usual course of business for the plaintiffs to re-
ceive cheques payable to order, and, therefore, when they
were from London they should have some one with au-
thority to endorse cheques. If them were an extension
of time for presentation in consequence of the absence of
the principals ,it would be impossible to lay down any
fixed and certain rule. One principal might be fifty
miles away, another in France, and another in Russia, and
in each case the period of delay would he different.
Lord Chief Justice !Mein asked Sir G. Honyman where
he would draw tile line to suit all these various cases that
would arise 1

Sir G. Hoop= begged to woe the words of Mr. Baron

Bramwell when in a similar position, and say that he.
not care where the line was drawn, for wherever dr.s.,
he was some distance on the right side of it. (Lisught..,
Lord Chief Justice Bevil' said that his own impres,.,
was that the questions raised were questions of lab o,
the full court, but he would, in accordance with the
of the plaintiffs' counsel, leave the matter to the jim
The principal question for them was, whether the ela. :
was presented within a reasonable time ; and the questv(
as he hail said before, was a very important and perh..
• very difficult one, especially ea there was no eviikae.,
usage, and probably, indeed, no usage. There s„
another question, whether the crossing of the che.;,
extended the time for presentation. It was quite clear M
if the plaintiffs had themselves crossed the cheque m
would not have extended the time; but the question s,
whether, the defendant having drawn the cheque in to
form, with the assent of the plaintiffs, the effect was;
extend the time for presentation.
The jury, after considering the matter for some th,
found that the cheque was presented within a reasons:
time.

Lord Chief Justice Benill said that as a matter of I.
he should hold that the cheque, being payable to °rile
did not enlarge the time for presentation.
The jury said their opinion was that it ought to enter,
it one day ; they looked upon the order as a restrict!,
upon payment, and that time should be allowed to ean7b
the formalities rendered necessary by these restrictions.
Lord Chief Justice Bovill said that in reference to tl
cresting he agreed in opinion with the jury. He held th
a person receiving •crossed cheque had the. whole of ti
following day to pay it to his banker, sad his 'make M
the whole of the following day to present it for payn,at
A verdict was entered for the plaintiffs for the mom
of the cheque and interest ; subject to the opinion of ti
full court.

COURT OF PROBATE AND DIVOB.CE.
FIB. 22.
(Before the Judge Ordinary.)
NOM= V. RUBB AND wrrrs.
This part heard probate cause was resumed to-clay, t
before the close of the plaintiff's case, Mr. Coleridge
cloned the opposition to the will, and the Court deck:
Probate.