Howe v. Forbes
Supreme Court
Field J., 9 December, 1823
Source: Sydney Gazette, 18 December 1823[1]

This was an action brought by Mr. Robert Howe to recover of Mr. F. E. Forbes, the sum of £300 Sterling, upon a promissory note:
The circumstances were these. In August, 1822, the plaintiff purchased of Messrs. Terry and Campbell, jun. upwards of ten tons of sugar, for 1305 Spanish dollars, payable at 3 months, with the privilege of having the bill renewed, if required. The bill came due in November following; but Mr. Terry was then in the country. Application was made to Mr. Campbell, in the absence of Mr. Terry, who with the aid of Messrs. Josephson and Forbes assisted the plaintiff in this action to obtain a renewal of the note. In a few days after this affair, the defendant called upon Mr. Howe (the plaintiff) and requested, in return for his assistance, the name of the latter to a promissory note; saying that Mr. Josephson would call with it. Accordingly Mr. J. came to the plaintiff with a note for £300 sterling, drawn by F.E. Forbes in favour of Mr. Robert Howe, at 12 months after date. As the first indorser, the plaintiff affixed his signature.
As the defendant's Solicitors, Messrs. Garling and Allen, had given notice to prove consideration for the note; upon the part of the plaintiff, Mr. Norton called Mr. Jacob Josephson, whose evidence went to say, that in the beginning of November 1822, a note in Mr. Wentworth's hands, for £300 and, drawn by Forbes, then came due. That Forbes was distressed, at the moment, for cash; but that he, in his usual way, assisted his friend out of the difficulty, by lending him £100 to take it up, upon the condition that Forbes should get him a note with the same indorses to get discounted. That he (Josephson), at the instance of Forbes, took the note, the cause of the present action, to the plaintiff, who placed his name thereto. The note was then taken by him (Josephson) to Mr. De Mestre, who discounted it, upon its being again indorsed by "J. Josephson." Mr. Josephson then took the money to Forbes, deducting the lent £100, and handing over to him the balance of the proceeds. Owing to the circumstance of this note for £300 being drawn exactly upon the same day as the plaintiff's dollar note to Mr. Terry for 1305 dollars became due, much stress was laid upon the circumstances by the Solicitors for the defendant, who were instructed that the £300 note was made for the plaintiff's accommodation, and not for that of Forbes; but that of the latter gave this note to the plaintiff to extricate him from transient embarrassment.
Mr. Samuel Terry proved the fact of the sugar purchase, and that he was prevented from fulfilling his engagement on account of absence from town. He further stated that the note became due in November 1822; and that it was a dollar transaction, and only of 3 months existence.
Upon the part of the defendant, Mr. Garling informed the Court that he was instructed to say, that the note, the subject of the present action, was given by F.E. Forbes, the maker, for the sole accommodation of the plaintiff, in order to relieve him from temporary involvement, and that the defendant's interest was not in regard at all in this circumstance. That he (the defendant) had been applied to, as he would show, by the plaintiff, requesting his powerful aid, and that the defendant stepped forward to relieve him in the moment of distress.
Mr De Mestre proved that he discounted the note, for £300 sterling, for Mr. Josephson, but that he was not then told it was for the accommodation of Mr. Howe; though several days before Mr. Josephson had applied to him to assist the plaintiff under momentary embarrassment.
Mr. R. Campbell, jun. proved that he assisted the plaintiff in November 1822 with 659 dollars, to effect his taking up the note for 1305 dollars. That this was done by three several notes being drawn in favour of F.E. Forbes, at 3 months after date, one of which included one moiety, while the other to embrace the other moiety of the original quantity of dollars. Mr. Campbell said, that he was further aware, that the plaintiff had received the other sum, to make up the whole, from Mr. Josephson; and that, to his knowledge, the defendant (Forbes) had not advanced one single dollar towards the exigency of the plaintiff but had nearly accommodated him with the name as the first indorser.
The three dollar notes, referred to by Mr. Campbell, were produced by Mr. Norton, Solicitor for the plaintiff. They accorded with Mr. C's evidence, and bore the receipt of the Bank Collector as having been paid when due.
Mr. Polack, clerk to Mr. Josephson, was called. He drew the note for £300 sterling, but whether at the instance of his employer, or that of the plaintiff or defendant, he could not recollect. He remembered it was not for the plaintiff, as he was not in the custom of getting notes drawn at their house, but that it was [?] her for his employer or Forbes, he had no doubt. The private books between his employer and Forbes were kept by the latter, previous to the late interruption of amity between them; that he had no access to those books; and that nothing relevant to this note was recorded in the books kept by him as clerk.
Two letters from the plaintiff to the defendant, with the dates torn off, with the exception of the figures 1822, were produced in evidence. They went to shew there was something in the accommodating way between the plaintiff and defendant. One purported to have enclosed a note for the "powerful name of F. E. Forbes" to be fixed. Some emphasis was laid upon this point. It was urged by Mr. Garling that this note for £300 sterling, was that which had been so enveloped to his client for his powerful name. All the usual legal ingenuity of Mr. Garling, and the honest warmth of his friend Mr. Allen, was summoned into action in this contest, and no effort was left untried to saddle the plaintiff with the note.
The Court, upon examination, ascertained that the mutilated letter, which was put in as having contained the £300 note, would not correspond with that note: but that, upon comparing one of the three notes spoken to by Mr. Campbell, for 325 dollars, it was apparent that this must have been the note which was inclosed in the said letter; and that the note for £300 sterling had never been enveloped in either of the letters. It also was manifest to the Court, notwithstanding the ingenuity that had been exercised in trying to friend this £300 sterling note with the plaintiff's dollar-notes, that they were quite distinct transactions. The note for £300 was a sterling obligation, and was 12 months after date; whereas the other three notes were dollar-notes, and only three months after date; besides which it had been proved by Mr Josephson, that the proceeds of the former note were handed by him to Forbes: and it was also proved by Mr. Campbell that Forbes had not advanced a single dollar for the plaintiff's accommodation. (It should have been before mentioned that the plaintiff had been compelled to take up this note.)
Mr. Justice Field said, it was not likely that Mr. Howe should enclose a blank promissory note for £300 sterling to Mr. Forbes for the favour of his name as maker: whereas that language was very consistent with enclosing a promissory note for 300 dollars, made by Mr. Howe for Mr. Forbes to indorse merely. The only difficulty was, that it appeared by the evidence of the Bank Collector that the original note for £300 sterling was paid on the 8th November, whereas the substituted note was not dated till the 14th; but that might be surmounted, either by supposing it to be post-dated, or that Mr. Josephson might have advanced his £100 towards taking it up before he got the substituted note made, indorsed, and discounted. Mr. Josephson's memory was not accurate as to dates; but he said he was very glad when he did get the discount effected, no doubt to repay himself the £100. His Honor also observed upon the note's being noted as refused payment by Mr. Forbes as an accommodation note to Mr. Josephson, and now resisted as an accommodation to the plaintiff.
His Honor the Judge, in animadverting upon the testimony in this transaction, could not avoid expressing the indignation of the Court at the conduct of the defendant; and said that it was like all other cases with which he had connexion, one of fraud, and of that species which called for the denunciation of a Court of Justice. His Honor alluded to a late case of the Executors of Mansell against Eagar, in which Forbes was garnishee, and in which it was demonstrated that Eagar had forged a receipt over what was intended only for the indorsement of Mr. Jones upon a promissory note, but had unfortunately dated it after Mr. Jones had left the Colony. A verdict was accordingly given for the plaintiff. Damages £301 15s.

Note

[1] F.E. Forbes was not Francis Forbes, the later Chief Justice.
In the Court of Appeal, the Governor confirmed the decision of the Supreme Court: see Minute Books (Court of Appeals), 16 June 1817-20 April 1824, State Records N.S.W., 4/6604 at 84.