The Sun.
London, England, 1862-09-19 00:00:00

AN EXTRAORDINARY ACTION ABOUT ACCOMMODATION

BILLS.---PINK 1"34P.

This was an action upon ;:dishonoured promissory note
or bill of exchange, defendant having, amongst other pleas,
pleaded bankruptcy.
Mr. Gordon Allen (instructed by Mr. Batt), appeared
foe the plaintiff, and Mr. Philbrick (by Mr. Miller) for
defendant.

Mr. Gordon Allen having opened the case, called John
Pink, the plaintiff, who said--I live at Castle Bar Park,
Ealing, and mu now out of business. I know the defendant.
In 1856 he was a bill-broker in Nicholas-lane. I know
one Austin. In October, 1856, Austin wished to raise
money, and I consented to endorse the bille. I applied to
defendant, and the arrangement was the bills should be
kept in his desk sacred and should not be negotiated.
Ile had before " done" a bill or two. The bills were
each of • £5OO. The bills produced are those lodged
with Kemp for discount. Kemp then spoke of the tight-
ness of the money market, and added, " Of course you
know these bills, being accommodation, cannot be negotiated
in the market." I replied that I would pay a considera-
tion in consequence of that, and 1 per cent, was mentioned.
Kemp then said he would do them, and they should no
see daylight till they were done. He said he would give
me £5OO ill account, and the rest on the Friday following.
In the interim ho stopped payment. I paid an extra
rate of discount so that the bills might be kept sacred, I
did not want my name hawked about, as this was an
accommodation affair. Mr. Austin paid the bills when
due. I did not pay them. The defendant obtained a certifi-
cate after this. In 1859 I was asked to join in a petition.
I saw Kemp, who had started a new Limited Discount
Company. lie said he was about to supersede his
bankruptcy, and if I would sign the document he
would give me £250. I did sign, and he gave me out of his
desk a promissory note already prepared for £225, to be
paid by instalments. None of the instalments have been
paid.

Cross-examined—The promissory note was not presented
till after I consulted my solicitor about it. Austin has not
been bankrupt or insolvent. I pledge my oath I had no
more than £5OO in one cheque, I will not rvear to one
cheque. I did not have three cheques in that transaction.
I only had £5OO. If I received a cheque of £5O on the 3d
February, 1857, I must have had r 550, but I don't think
did. I believe it was only £5OO. Kemp chequod five per
cent. discount and one per cent. commission, and one per
cent, extra. I was never called upon in any shape or way
to pay. I am now liable to Mr. Austin. We were not
flying the kite together. There Wes no scheming at all.
It was a pure accommodation bill. Ido not know how I
shall make out my liability. I believe lam liable, bat am
glad if lam not, I have been a party to an accommoda-
tion bill about a dozen times in my life.
A clerk in the London and %% estminster Bank said that
the bills had been paid when they became due on Dec. 24,
1856, and Jan. 24, 1857 ; and a clerk in Olding's Bank said
the bills were discounted there on Oct. 24 and beginning of
Nov., 1856. Olding's were defendant's bankers.
Mr. Philbrick objected that plaintiff had given evidence
of a virtual arrangement upon a written negotiable instru-
rnent, and urged that plaintiff had shown no damage what-
ever. The learned counsel further contended that the debt
had been fully extinguished by the eeri ificate in bankruptcy.
If the promissory note was given under the conditions stated
it was absolutely void, and could not be taken out of the
204th section of the Bankruptcy Act in 1849. The learned
counsel quoted cases in support of his view of the case, and
contended that plaintiff could not recover.
Mr. Allen replied that this was a special count, framed
upon a promise, and a breach had been clearly proved by
which plaintiff was entitled either to special or nominal
damages. Plaintiff was liable to pay this money although
he had not yet been called upon to do so. The Bankruptcy
Act could not apply here as there was a fresh promise creat-
ing an entirely new debt.
His Lordship—l shall be inclined to decide that there is
no case, but as Mr. Allen would like to move I will reserve.
The opinion of the jury had, however, better be taken upon
the count for damages. If the Court above should be of
opinion that the nonsuit is wrong, it may be as well to have
the verdict of the jury. Upon the second count I am clearly
of opinion that plaintiff has put himself out of Court,
Jury—We find no damages.
Nonsuited.