CLAIM FOR DEBT

Greymouth Evening Star, 20 October 1942, Page 2

CLAIM FOR DEBT

j PROCEEDINGS AT GREYMOUTH I At a civil sitting of the Magistrate’s Court, at Greymouth, this morning, John James Bourke, of Greymouth, represented by Mr. W. D. Taylor, i claimed from his brother, William ! Bourke, of Hamilton, and formerly of i Greymouth, who was represented by ! Mr. J. W. Hannan, the sum of £9l 10/-, being the balance of a loan of £lOO alleged to have been made by plaintiff to defendant at Greymouth, on August 3, 1939. ■ The evidence of defendant was tak- ■ en at Hamilton. . Plaintiff in evidence said defendant was his brother, and was employed at Glen Afton collierfes. In 1939 he owned property at Barrytown, which was in his wife’s name. In July, 1939, the house was destroyed by fire. ana lie received in insurance £492/10/-, in settlement of the claim, on August 3, 1939. His brother had asked him for a loan of £lOO, but plaintiff told him he did not have £lOO. However, defendant said he (plaintiff) had just received a cheque for over £4OO. He said he wanted the money to pay some debts. He also told witness he intended leaving Greymouth. Defendant brought the matter up some days later, and he eventually agreed to give the loan. Witness aid not have the cheque at that time. His ■ (witness’s) wife was with him when ■ he collected the cheque. He went to Mr. Boucher’s and cashed the cheque. i Later at the railway station there was an argument over the loan, but the money was eventually handed over in i £5 notes. Defendant said he would I pay £l5 to £2O a month in repay- • ing the loan. Defendant left Greymouth for Nelson shortly afterwards. In October, 1939, witness went into hospital, and he had not then received any money from defendant. Witness wrote and asked defendant for a, payment on the loan, and he sent £4. TWo. months after that defendant sent another £3. After witness came om of hospital he received a letter from defendant, who said he was ‘‘in with Newnham.” whom witness understood was a bookmaker. Witness wrote to him and suggested that he “pull out” if he was in with a bookmaker, and also asked him to send some more money. Defendant later came back to Greymouth and worked in a mine. Witness interviewed him several times on his return and defendant still .said he would do his best. In August, 1940 witness consulted his solicitors. Witness saw defendant after the latter had received a letter from the solicitors, and he gave witness £l/10/- which was the last that had been received. About October 1, 1940 witness went to camp. Defendant left Greymouth and went to Huntly to work in a mine. Witness had not seen him since. About seven or eight months ago witness found out he was working at Huntly. Up till then he had not known where defendant was. Defendant had never denied that he owed the money. No receipts passed between witness and defendant. He had read defendant’s statement, that the money was to enable the two of them to enter a bookmaking business, but that was incorrect. On one occasion witness had a good win from a “tip” his brother gave him, but tnat was before the money was loaned. To Mr. Hannan: His brother did not say to whom he owed the money when he said he wanted it to pay debts. His brother lived with his sister, Mrs. Rooney, in Blaketown. Witness did not discuss the proposed loan at Rooney’s, but witness had discussed it with Mrs. Rooney. It would be untrue if Mrs. Rooney said all the arrangements were made and the money paid over at her house. It was correct that as a result of information received from defendant he had made £305 in one day on two horses. At that time defendant was an agent lor the bookmaker, Newnham. Witness was not a fairly regular or heavy bettor. The most he put on a horse now was 2/6 or 5/- for a place. It was news to him that he lost a position on the Barrytown dredge because he was known as a heavy bettor. When defendant went to Nelson he did not know he was going to join Newnham. He would not have got the £lOO if witness had known he was going in with Newnham. Witness did lend his car to defendant to go to Westport, but he did not know he was going there to see Newnham. Mrs. Rooney was receiving financial assistance from his brother. Mr. Rooney was in regular work. When he loaned the money defendant was not working, but he said he was going to work in Nelson. Witness did not ask what wages he was going to get in Nelson. His brother would never go to the solicitors to make arrangements about payment of instalments. Mrs. Maud Josephine Bourke, wife of plaintiff, corroborated the evidence of plaintiff regarding the payment, of the loan. She was upset over her husband lending the money to his brother, who said he wanted to settle some debts in Greymouth. Defendant said that if he did any good in Nelson he would send £l5 or £2O a month. She said she did not see how a working man could pay at that rate, and suggested that he make it £5 a month, the amount of their rent. Defendant said he could guarantee to do that, and that he would probably have it all paid back by Christmas. The loan was given on August 3. She wrote to defendant while her husband was in hospital, and he sent £3, and said he was not doing too well. About Christmas time, she learned that defendant was in the bookmaking business with Newnham. Her husband went to camp about October, 1940, and defendant came to see her while her husband was away. He was very upset about receiving a letter from the solicitors, and said it was a bookmaking transaction between him and plaintiff, and no Magistrate would listen to it. He said that if they would withdraw the proceedings he would hand over his Army pay to her, as he was shortly to go into camp. She then got her husband to withdraw the proceedings, on that understanding. However, defendant did

not go into camp. When the money was advanced she did not have any indication that it was to be used for a bookmaking business. To Mi’. Hannan: She heard in a roundabout way that defendant .was acting as a bookmaker’s agent, in Greymouth. She went and asked Mrs. Rooney to use her influence to persuade plaintiff not to pay the money to his brother. She and Mrs. Rooney were alone. The money was not paid over at Mrs. Rooney’s. She knew her husband used to bet a little, but only in a small way. She had never complained to Mrs. Rooney about her husband’s betting. THE DEFENCE. Mr. Hannan formally put in the evidence of defendant, taken at Hamilton, and on the file. He said that the defence contended that there was no obligation on the terms of the loan to return the money, as the venture had not been successful. There was also a legal defence that if the money was loaned for the definite purpose of enabling defendant to enter an illegal business, then it was irrecoverable.

Mrs. Charlotte Rooney, a sister of plaintiff and defendant, said that before the money from the fire insurance was received, plaintiff asked defendant at her house if he knew where Newnham, a bookmaker, was. Defendant.said he thought he was in Nelson. The payment of the £lOO was made in her house, when plaintiff and his wife, and defendant and witness and witness’s husband were present. Mrs. Bourke, wife of plaintiff, pleaded with her husband not to invest the money in a gambling business. Plaintiff arranged for defendant to take his (plaintiff’s) car to Westport to meet Newnham.

To Mr. Taylor: The money was handed over after the evening meal. She did not count the money, and could not state whether the money was in £5 or £lO notes. It was paid in notes, not by cheque. The transaction took place on a Friday evening. Defendant and plaintiff and the latter’s wife came in together. Plaintiff was staying with witness at that time. The only discussion that took place about repayment was that if. defendant won money he should pay it back. Plaintiff’s wife was heart-broken about the matter, and asked witness what she thought about it. Witness agreed she did not think the money should be loaned. She had known all along where defendant was when he left Greymouth for Huntly. She received some financial assistance from her brother (defendant) from time to time She had not passed a remark that if plaintiff won the case it would be the end of the assistance she got from defendant. John Patrick Rooney said the arrangement was that plaintiff gave defendant £lOO for a gamble—to enable defendant to go into business with a bookmaker, Newnham. The money was paid over in his house. Plaintiff knew what the money was to be used for.

To Mr. Taylor: The money was passed over in notes. He did not know whether they were sitting round the table, or sitting round the room. He could not say in what denominations of notes the amount was passed over. If his wife had received any money from defendant she had not told him about it. After submissions by both counsel, the Magistrate said that he would take time to consider, his decision. He would have to look into the question of the onus of proof on defendant raised by Mr. Taylor on the ground that bookmaking was a criminal offence. There was a conflict of evidence, but on the evidence produced he would be quite unable to give judgment for plaintiff.