AN ILLEGAL DEBT

Hawera Star, Volume LIV, 16 August 1934, Page 4

AN ILLEGAL DEBT

Trustees Unsuccessful Action to Recover £224 BOOKMAKING LOSS defence in patea case Proceedings were taken in the Magistrate’s Court at Patea yesterday by the executors in the estate ot James Paterson, deceased, against lunito Maruera, a Maori of high caste in the district, for the recovery ot £224 alleged to have been lent by deceased to defendant. After hearing the evidence the magistrate (Mr «J. a. Salmon) nonsuited plaintiffs on the grounds of the illegality of the debt which, it was held, was contracted in contravention of the Gaming Act, defondant having admitted participating in the business of bookmaking in 19-1 with deceased as partner on a fiftyfifty ha sis. 9 Plaintiffs were represented by Mr W M Milliken and defendant by Mr J. H. Dowdell. ...... At. the commencement of the hearing it was represented that- the sum of £224' had been lent to defendant in the course of deceased’s various transactions with the Maoris of the district. Francis W. Hamel, in evidence, stated that he had acted as solicitor for deceased for a number of years and was well acquainted with his business transactions. Paterson had considerable dealings with the Maoris, and it was hi s custom to take large sums of money to Native Land Court pay-outs to cash the cheques issued to them. Witness • became acquainted with Tup ito .soon after he was called upon to act as deceased’s attorney. Witness recognised a cheque (produced) which had been found among deceased’s effects as acknowledgment of Tupito’s liability to Paterson for the sum of £224. The signature on it was Tupito’s, and the cheque was produced as corroborative evidence of the Joan by Paterson to Tupito. • NO OTHER RECORD. Cross-examined by Mr Oowdell, witness said that there was nothing in deceased’s books to show that the transaction had been made. There were few entries of such dealings with other natives, except those relative to debts incurred by them in purchases from deceased’s shop. Witness was not aware of the exact amount due until the cheque was found. He knew, however, that it must- have been a considerable sum because of the statements made to him from time, to time by Paterson himself before his death and since then by his assistant. Mr Oowdell: You knew Paterson very well. Witness: Yes. Do you know whether he carried on business as a bookmaker? No, I would be surprised if he did. Was he in partnership with anyone else ?

No, not so far as I know. Josiah Richard Evans, an employee for 14 or 15 years in the business formerly conducted by Paterson, stated that no one came into the shop to transact business other than that connected with saddlery. Witness knew Tupito, who very often came into tlie shop and received advances of money from Paterson. Advances were made “lots of times,” and the only record he ever saw of the amount was a cheque ivhich he found after Paterson's death and took to the attorney. Questioned by Mr Oowdell, witness said he found no other document of that particular transaction. There were other records of his business dealings. Paterson had been ill for some time prior to death and was unable to attend to his business. Do you know whether your employer at any time acted as a bookmaker? NEVER, A BOOKMAKER,. He was a betting man, but never a bookmaker, replied witness. “The evidence falls far short of that necessary to substantiate such a claim as this and I ask for a nonsuit, ” said Mr Oowdell. The only corroborative evidence, if it could be regarded as such, was the cheque, but even of this the court could surely have but scant regard. It was not even dated. The magistrate: Where we find an undated but signed cheque is it not evidence of a promise to pay in a certain event?

Mr Cowdell: The onus is on plaintiffs to show why the promise was not fulfilled. It might even be statute barred.

The magistrate: That is true. It has been owing over six years. You have this advantage, • that plaintiffs have not- been able to show why any particular condition attaching to the cheque has not been fulfilled. The magistrate intimated that he would hear what defendant had to say before deciding the application for a nonsuit.

Defendant, who described himself as chairman of the Taranaki Maori Council and also the Taranaki Maori Trust Board at Hawera, said he knew Pater-a-hen he (defendant) was a billiard saloon proprietor in Patea in 1920. Paterson approached him and asked him to take on a bookmaking business on a 50-50 basis. He agreed and business was carried on, sometimes making a profit and at othei-6 a loss. About eight months after the commencement of those operations defendant gave a cheque to Paterson for £224, dated May 20, 1921. This was to show Paterson what the business owed him. He did not think it was presented at the bank, as it was not shown in the bank passbook. VISIT FROM THE POLlCljl Eight or nine -months after the cheque was given the police paid him a visit and he immediately gave up the business. Some six years later a native woman went to Paterson and asked for a. loan to conduct a case in the Native Land Court. Paterson, in turn, asked defendant to write another cheque as the old one was no good. Tupito said lie could not as he had no money in the bank, whereupon Paterson produced his own 'book, which defendant signed on the understanding that it would not be presented. He had .seen Paterson many times since. To Mr Milliken, defendant said the 1928 cheque produced was the one he signed. It- was not dated. To the magistrate: The bookmaking business suffered a. big loss when it had to pay out £SOO to a man who put £BO on a horse called Trouble. The magistrate: Evidently it brought you trouble ever since. Defendant continued that the first cheque represented what the business was owing Paterson before that loss was made. Mr Cowdell submitted that the debt was not legal as it came within the Gaming Act and, as the second cheque

replaced the first, it also was not recoverable. Mr Milliken in turn submitted that the cheque represented moneys paid bv Paterson to Tnpito, and was given by the latter as a document of his liability. . In giving his decision the magistrate pointed out that if the cheque was for money lent, then defendant drew it on a bank in which he had had no account. The only conclusion he could arrive at was that defendant’s story was the more probable, that he was carrying on an illegal business and gave the first cheque in settlement betwen the two parties, the second being a substitute for the first. There was not sufficient evidence to support the claim and he therefore entered a nonsuit.