CLAIM FOR £650.

Press, Volume LXVIII, Issue 20730, 15 December 1932, Page 12

CLAIM FOR £650.

| SUPREME COURT HEARS | CASE. j DEFENCE BASED ON GAMING | . ACT. A claim for £GSO was heard in the Supreme Court yesterday by Mr Justice Ostler, who reserved his decision. For the plaintiffs it was alleged that the £650 represented a loan to a Christchurch horse trainer; but the defence not only denied this, but also claimed that the debt,' if any, became owing through gaming or wagering, rendering tho contract or agreement null and void under the Gaming Act. It was argued by plaintiffs that though tho alleged advanco was made by a firm of bookmakers, it was purely a loan, and had nothing to do with letting.

Tho plaintiffs were Robert Michael Cox, of Christchurch, and Elizabeth Walsh, of Melbourne, and tho defendants were Ernest Roland Burton and James Gibson Patterson, of Dunedin, administrators' in the estate of John McCombe, formerly a horse-trainer in Christchurch. Elizabeth Walsh was described as the executrix of the will of James Walsh. The statement of claim set out that Robert Cox and Patrick Walsh, on March 31st, 1926, advanced to John McCombe £650 repayable on demand. The plaintiffs had on various occasions demanded repayment, but repayment had not been made. Tho defence was a general denial of the plaintiffs' allegations; and, alternatively, that if any sum was owing by McCombe at his death, then tho debt became owing under or in respect of a contract or agreement by way of gaming or wagering, which was rendered null and void by the Gaming Act, 1908; Mr W. J. Sim appeared for the plaintiffs and Mr C. S. Thomes and Dr. A. L. Haslam for tho defendants. Case for Plaintiffs. Mr Sim said this was an action - in which was claimed £650 and the interest on it, being due on a cheque dated April 4th, 1927, given to Robert Cox and now hold by him. The action was against the executors of John McCombe, who had given the clieque. A cheque being in the hands of a holder, value was presumed and tho proof rested upon the cheque itself. In this case tho dofence pleaded the Gaming Act. Cox and Walsh had both been convicted under tho Gaming Act, and it was undoubtedly that which provided tho background for that line of defence. But bocauso theso men had been convicted of bookmaking it could not be presumed that this or any other transaction must necessarily have to do with bookmaking and derive from that a tainted consideration. It was obvious that bookmakers must have many transactions which were within the law. In the present case tho money was a loan to McCoinbe, who was a'horse-trainer with stables at RiccartOn, and wlio in 1920 came to Cox and Walsh and told thorn he was financially embarrassed, and wanted money to carry on his business. The money was taken out of an envelope kept by Cox and Walsh at the Bank of Australasia, McCombe in return giving a cheque for the amount. Following that, McCombo asked that the cheque be not presented, as he did not hive the money to par, and in the following April he made out a new cheque McCombe died and Ins widow was asked for the money and said there were no assets in tho estate. Then, in. 1011 Cox saw br an advertisement m a* Dunedin paper'that tho trustees were selling assets out of the? estate, and instructed Ins solicitor to lodge a claim immcdinl fly.

Transaction Described. Kobort Michael Cox said lie resided at Warner's Ms jife being the manageress there. He had kno*n McCombe for 20 vears before 1926, and bn and Walsh and witness wore all good fiicncls. At the end of March, 1926, Mc-Combc .came to Walsh and witness and asked for a loan ot £(wo to carry on his business, his intention being to ,v 0 to Australia. Walsh and witness derided- to lend him the money. Witness ami Walsh had both been convicted of keeping a common gaming house, and in 1928 witness was convicted of assisting

I with one. McCombe was lent the ' money, the £650 being taken from an envelope which Walsh and witness kept at the -Bank of Australasia. His Honour: How much money did you have in this envelope. Witness: We had varying sums from time to time, your Honour. \ His Honour: That seems a most extraordinary thing. Did you have an account at the bank. Witness: Yes. His Honour: Then why did you not operate on your account. Mr Sim: They did not want to confuse the transaction, since they were joint lenders of tho money. "Was the money kept away from the current account for income tax purposes?" asked his Honour. "Your Honour will appreciate that they were bookmakers," said Mr Sim. "I am not hero to strive to condone the past; but I say that bookmakers can have dealings within the law, and this is one of them." McCombe, witness continued, said he was in financial difficulties at the time. He had an excellent reputation for honesty, and had repaid loans from plaintiffs before. The money was advanced by witness and Walsh equally. In April, 1927, McCombe gave a second cheque for fie ambunt to witness, instead of a cheque given earlier. Cox presented it to the ledger-keeper at the bank, and was told no arrangements had been made to meet it. The remainder of witness's evidence corroborated the opening statement of Mr Sim. Cross-examined by Mr Thomas, witness denied that the £650 was a balance owing on. betting transactions. The envelope at the bank had in it money that did not go through th'o current account. It was used for paying out, and because witness and Walsh did not want to show too much money in their current account. When Walsh died, the books of the partnership were burned, only a list of moneys owing being kept. Witness then formed a new partnership with Pat Walsh. MeCombe had been a fairly free bettor, and had had betting transactions with witness. Evidence in respect of McCombe's racing activities was given by Frank Thomas Henry Bell, secretary of the Canterbury Jockey Club, and Patrick John McNab, course manager at the Riccarton racecourse. Defence Counsel's Contentions. Mr Thomas said this was more or less of a simple fact case. McCombe had varied interests—*-he had quite substantial assets in Dunedin, and was running a training stable in Christchurch. He had large money dealings, and within two months of the transaction in question he had re-aTranged • the whole of his finances with the bank and paid all his debts. It was admitted that McCombe was invariably honest in his dealings, and counsel would show that he could easily have raised the money to repay the £650. He was a heavy bettor, and on one occasion had £2OOO oil a horse. He bet frequently and consistently with tho firm of Cox and Walsh, his wife frequently telephoning the bets for him. She waß quite satisfied that this was a gaming debt r 'This is a stale claim," continued Mr Thomas. "The alleged debt was incurred m 1926, and "no action was taken Dy the plaintiffs until September, 1931 no steps -were taken during the three years AlcCombo was alive, though plaintiffs knew he was training and racing horses, and though they know he had assets in Dunedin." Mr Thomas described Cox's evidence as unsatisfactory. Cox admitted that he had seen the advertisements calling for claims on the estate to be sent in] but he did not send in this claim, which was alleged to be an absolutely legitimate one. Counsel described the circumstances of the loan as extraordinary. If it had been a bona fide transaction, why was the money not paid over the counter in tlx 6 ordinary w&yt 1 Valuable Property in Dnnedin. Ernest Koland Burton, one of the rl™ ifaVv estate > "aid his firm had kept McCombe'a books for Z ow ° ed a very , valuable property m Dunedin. The estate was not fully realised yet; due to the depressed conditions, it was not at nrel ent solvent. Witness explained certain large advances and remittances made by his firm to McCombe. At the time of the transaction m question, McCombc would*-have had no difficulty whatever in finding money to repay a loan Lurline MeCombe said she knew her' husband bet with Walsh and Cox be' 1 cause she had telephoned those bets He was a big bettor and frequentlv ' W £7O and £BO. She had known him to

put £ 2000 on one horse —thai IMS' Wjp', Sydney. Her husband's bettiag 'ximfvit' for the purposes of Cox and Waiak. itagju: "J. Brown, Hicearton." Witness '.WHfjg-# that if she had the money she pay it, but she would pay it gambling debt and not as ■ Evidence was also given by OtaifrJjij! Emilius Wilkins, a law clerfc Thomas's office, who was called tyrSjßfcjj&} After hearing legal Honour reserved his deeieMß.,,;.^