LOAN OR WAGER

Dominion, Volume 26, Issue 70, 15 December 1932, Page 11

LOAN OR WAGER

Problem for Supreme Court DECISION RESERVED Claim Against Estate I By Telegraph—Press Association. Christchurch, Dec. 14. A claim for £650 is being beard in the Supreme Court before his Honour Mr. Justice Ostler. Plaintiff, though admittedly a bookmaker at tbe time of tbe transaction, claims that tbe amount was a loan and was not, as tbe defence suggested, owing as a gaming debt. The plaintiffs are Robert Michael Cox, of Christchurch, and Elizabeth Walsh, of Dalgcty’s Court, St. Kildn, .Melbourne, executrix of the will of the late James Walsh, deceased, of Christchurch. Defendants are Ernest Roland Burton and James Gibson Patterson, both of Dunedin, accountants, administrators of the estate of the late John McCombe, horse trainer. C’ox said that the £650 was lent to McCombe when going to Australia in 1926. A. cheque given in payment had been dishonoured. Denial by Defence. The defence consists of a general denial, with tbe further submission that if the amount is owing, which is denied, then the debt is a wager, null and void, under the Gaming Act, 1908. Mr. Sim, counsel for plaintiffs, said the claim was for money lent and due, for which plaintiffs held McCombe's cheque, dated April 4, .1927. Tbe defence pleaded the Gaming Act. Cox and Walsbe had both been convicted under the Gaming Act, and this undoubtedly provided the background for that line of defence, but because these men had been convicted of bookmaking it could not be presumed that this, or any other transaction, must necessarily have to do with bookmaking. Tbe money was a loan to McCombe, and cash had been taken out of tbe envelope kept by Cox and Walshe at the Bank of Australasia. McCombe gave a cheque for the amount, but asked that it be not presented. Tn the following April he made out a new cheque. McCombe died, and the widow, when asked for the money, said there were no assets in tbe estate. In 1931 Cox saw an advertisement in a Dunedin paper that the trustees were selling the assets out of McCombe’s estate, and instructed his solicitor to lodge a claim. Robert Michael Cox, in evidence, supported counsel’s statement. When he spoke of the cash being taken from the envelope at the bank, his Honour asked: “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 the money. His Honour: Wan the mmwr i-oni away from the current account for income tax purposes.' “Dealings Within Law.’’ Mr. Sim: Your Honour will appreciate that they were bookmakers? I am not here to strive to condone the past, but I say bookmakers have dealings within the law, and this is one of them. Witness said that McCombe had an excellent reputation for honesty, and had previously repaid loans. He denied that £650 was the balance owing on betting transactions. Mr. Thomas, for the defence, said he would show McCombe could easily have raised tbe money to pay the debt of £650. He was a heavy bettor with Cox and Walshe. The wife usually telephoned bets for him, and she was satisfied that this was a gaming bet. Lurllue McCombe, widow of John McCombe, said her husband had frequently wagered £7O or £BO on a horse race. If she had the money she would pay this debt, but she would pay It as a gambling debt, and not as loan. His Honour reserved his decision.