RESIDENT MAGISTRATE'S COURT.

Daily Telegraph (Napier), Issue 3659, 6 April 1883, Page 3

RESIDENT MAGISTRATE'S COURT.

This Day

(Before Captain Preece, R.M.) drunkenness.

James Cassin and Hugh M'Ewau, for haA-ing been drunk yesterday, the former at Napier, and the latter at 'Taradale, Avere each fined 5s and costs, Avith the usual alternative in default. The fines Avere paid. THE TOTALISATOR CASE. David M'Guire sued H. P. Cohen for £3, being the amount of dividend payable in respect of a Aviiining ticket purchased at the defendant's totalisator on the Hastings racecourse on the 15th March last, and held by the plaintiff. Mr Lascelles appeared for the plaintiff, and Mr Lee for the defendant. The points of defence raised by Air Lee were as follows:—1, that Air Cohen was not the defendant, and was Avrongly sued ; 2, that even if he Avere the defendant he could not be legally sued ; 3, that no contract was made Avith the defendant: 1, that the ticket Avas not bought of the persons who had the totalisator ; 5, that the totalisator was used subject to certain rules posted upon it, one rule being that all dividends must be applied for on the course ; 6, that dividends ought to be applied for at the conclusion of the races in respect of Avhich they are payable; 7, that the ticket avus not presented at any time on the course on the day of issue; 8, that all the winning tickets on the race in question Avere presented, and the money at the close came out all right. David McQuire deposed that, on the dny in question, lie Avas on the rauccour.se at Hastings. Prior to the sixth race being started"a man named Hickey handed him a ticket numbered "0," and marked sixth race (produced), and asked Avitness to collect the dividend on _ his behalf should number six horse win. The ticket proved a winning one, and witness Avcnt to the totalisator to receive the dividend, but as there avus a great crush of people about the machine he did not apply for it then, believing that ho couid obtain the dividend the folloAving day, or at anytime before the totalisator avus removed oft the course. The following morning he went to Mr Cohen and presented the ticket, but could not obtain payment of the dividend. Defendant told him that after the race Avas over the tickets that had been paid Avere thrown about on the course anywhere. Defendant agreed, however, to sec the stewards of the Jockey Club, aud if directed by them to do so he Avould pay Avitness the dividend. Ho said nothing about the whole of the tickets being paid for, but remarked that he did not think that Avitness,

a sergeant of police, Avould endeavor to palm off a ticket that had been picked up. That Avas the reason he gave for speaking to the steAvarcls on the matter. The defen-

clant had not yet paid the dividend, and had refused to do so.

By Air Lee : AVhen I presented the ticket Air Cohen did not say that, if it Avere not that I Avere a sergeant of police, he Avoidd give me into custody. He did not speak in a sharp tone. Did not say that if I went Avith him he would slioav me Avhere I could pick up twenli or thirty similar tickets. I invested iv other races that clay, but Avas not fortunate enough to be a Avinuer. I had never invested at preA'ious meetings.

By Air Lasecllos : I took the totalisator rules (produced, off the machine. Rule 7 provides that "all dividends must be applied for on the course." I could see notliiny in the rules to lead me to belieA'e that diA-idends must be applied for immediately after each race. I had no knowledge that such must be done. Air Cohen did not express any suspicions that I had come by the ticket othenvise than in the ordinarA* Avav.

Henry Hiekey deposed to huA-ing transferred his ticket to the previous Avitness to collect the dividend on his behalf. He purchased the ticket at the totalisator in tho ordinary avhv prior to tho starting of the sixth race. His reason for handing it over to Air McGuirc avus because he had to hurry off to catch the train for Kaikora. The race avus over Avhonhe left the course, and ho asked Air McGuirc, Avho avus standing by, to get his money for him. By Air Lee : On previous occasions Avhen he Avon dividends lie applied for them at once, believing it to be the safest plan.

Some discussion here took place between counsel on a legal point as to the definition of the term totalisator, and whether it a\ as a SAvecpstake or not. Air Lee arguing that if it Avas a sAveepstake it could only be legalised under section 10 of the Gaining and Lotteries Act by being employed by the Jockey Club.

Air Leo called attention to a discrepancy in the evidence given by the tAvo Avitncsses examined for the prosecution Avith respect to the time Avhen the transfer of the ticket took place. Tho Avhole story was, he contended, a concocted one, and the ticket had not been purchased at the totalisator as stated. There avus no agreement to pay on the face of the ticket produced, and Air Cohen could not be compelled to pay on it.

Air Lascelles said it would be well that a note should be taken of this. Perhaps it might be advisable for him to call evidence on the point. After some argument it was decided to leave the question of liability to be decided by His Worship. H. P. Cohen was then (.-ailed, and said that upon the decision of the sixth race on the first day of the Jockey Club's races in March last being made knoAvn the cuvidend on the Avinuing horse (No. 0), amounting *"" £3, Avas paid to all tho subscribers. The proper number of tickets came in. The following morning Air McGuirc came to Avitness on the course, and said he had a ticket. AVitness asked him Avhy he had not brought it the preA-ious night, and he replied that Avitness had told him it Avould be all rijjht the next day. To this Avisness replied that the statement avhs a deliberate falsehood. Plaintiff came back subsequently and asked Avitness Avhat he was going to do, to Avhich Avitness replied, "I don't know at present Avhat I shall do ; I did not think that you, being a sergeant of police, would try to present a ticket that has already been paid, but before I decide one way or the other I shall consult the secretary of the Jockey Club." AVitness Avas then of opinion that the ticket Avas one that had been throAvn on the ground after the race. He spoke sharply to plaintiff.

By Air Lascelles: No care is taken of the tickets after a race is OA-er and the correct number is received and paid out. On this occasion I swept the tickets off the counter into v box, but a feAV fell on the ground. I did not take the trouble to pick them up. The letter that appeared in the Herald, in which it avus stated that I am the actual and not the nominal defendant in this case, and that the Jockey Club has nothing to do Avith it Avhatever, avus Avritten by me.

Tavo other Avitnesses Avere examined as to the method iv which the totalisator was worked, but their -evidence Avas not material. Air Lee and Air Lascelles having addressed the Court His AVorship intimated that he Avould give judgment in the case at noon to-morroAV.