CLAIM FOR LOAN

Grey River Argus, 25 November 1942, Page 2

CLAIM FOR LOAN

Judgment for Plaintiff

Judgment for the plaintiff was given by Mr G. G. Chisholm. S.M., m tae Magistrate’s Court at Greymouth yesterday, in a reserved decision on proceedings brought bv John James Bourke of Greymouth, who claimed from his brother, William, Bourke, ot Hamilton, and formerly of Dreymouth, the, sum of £9l 10s, being the balance of a loan of £lOO alleged to have been made by plaintiff to defendant at Greymouth on August 3, 1939, plaintiff giving credit for three amounts totalling £3 10s., which he stated defendant repaid him. At the hearing on October 20, Mr W. D. Taylor represented plaintiff, and Mr J W. Hannan appeared for defendant. The Magistrate gave decision for plaintiff for the full amount ot the claim and costs. . After reviewing the evidence, the Magistrate said that he indicated at the. conclusion of the hearing that the evidence was unsatisfactory, and that the decision must depend upon the question of onus of uroof. “Where parties have entered into an illegal contract the law regards them as prima facie ‘in part delicto,’ and the onus lies upon the party seeking to establish a claim under it to exculpate himself. If that were the position in this case plaintiff could not succeed because I am of the opinion that his evidence is not sufficient for the purpose. However Ido not think that the case can be brought within 1 that class. While there is corroboration, in correspondence, of defendant’s evidence that he did actually enter into business at Nelson with, a bookmaker, and that plaintiff knew at some stage that he had done so, and, further, that repayments to plaintiff depended upon defendant’s income from that business, there is no corroboration of defendant’s allegation that the £lOO was advanced by plaintiff for that purpose, nor in fact, that the money was actually used for that purpose at all. If plain tiff advanced the money for defendant’s debts, as he says he did, and exoected repayment out of the profits of an illegal business in which defendant subsequently engaged, that would not suffice to make the plaintiff a party to the illegality. “I am satisfied, therefore, that the onus of proof lies upon the defendant to establish his defence bv proving that plaintiff knowingly advanced the money for an illegal purpose. The proof required for such a purpose must be such as to exculpate the plaintiff beyond all reasonable doubt. Defendant’s evidence falls short of the standard of proof required, and his defence must fail. I accept tha figures of the plaintiff as to the amount of payments received on account, and judgment will be „ tor plaintiff for the amount claimed. with costs.” The costs were assessed at £2 13s, and solicitor's fee £7 16s 9d was also allowed.