THIS DAY.

Evening Post, Volume XXI, Issue 23, 29 January 1881, Page 2

THIS DAY.

Upon resuming this morning, the plaintiff's caße was continued. The remainder of the ¦witnesses examined for the plaintiff included Messrs. Paul Coffey, Henry Hounsell, James Waldon, and Charles Hill, senior. Mr. Quick then addressed the Court for the defence. He contended that the plaintiff ought to be nonsuited on the ground that the decision of the committee not having been tainted by fraud, collusion, or any other element of which a Court of law could take cognizance, it must be decided to be final. In support of this contention he cited the case of Dines v. Wolf, reported in Privy Council, Vol. 2. This was an appeal from a decision in a case which was decided by a jury in Australia. The Privy Council overruled the jury's verdict, holding that the Court of law in Austra'ia had no jurisdiction to upset the ruling of the Australian Jockey Club, before whom the matter in action originally came. He also applied for a nonsuit on the merits of the case. It was hardly to be expected, he said, that gentlemen in responsible positions would allow themselves to be placed on committees in future if it were not understood that the exercise of their discretion on all points before them should not be regarded as binding on all parties concerned. Mr. Forwood having replied, his Worship said he did not feel inclined to give his immediate decision regarding the question of finality, which wa3 one of considerable importance ; but as to the merits of the case, so far aa he could see in the absence of evidence for the defence, there was no doubt whatever that the action of the csmmittee misled the competitors. For^the defence, Messrs. Martin Chapman, Captain Lewis, Alfred Batkin, E. C. Milis, George Bishop, and Captain Smith were

called to give their version of tho oircumBtances. In delivering judgment, Mr. Shaw referred to the declaration, vrhioh, he Baid, contained two counts wholly and totolty inconsistent—that wa«, if the plaintiff did not expect to recover on both— for in tho first place tho plaintiff alleged thero was a race and he won it, and in the 6econd ho alleged there was no race, and therefore he was entitled to receive his entrance money book. He (Mr. Shaw) mentioned this because it followed that if a verdict were given for the plaintiff on the first count it would neces* sarily dispose of the other, and vice versa. Now, in consideration of a certain advertised race, the plaintiff deposited £3 3s, and his Worship was clearly of opinion, after hearing all the evidence, and all that had been so properly and ably urged by learned counsel, that there had been no race at all. The instructions given to those who competed wero contradictory ; indeed, they were admitted to be so. Tho competitors wore told to follow a certain course marked on a chart, and they were also told to go round the buoy -boats Maori and Hope, which wero not disposed according to thai course. They could not follow both directions ; they must either follow one or the other. Tbe terms on which tho competitors competed , therofoTO, wore neither fair nor equal, for it was tho very essence of a contest that all should start fairly. There having been no race, the plaintiff was, consequently, entitled to the return of his emtrauco money, for which his Worship accordingly gave judgment. Mr. Quick — Does that carry costs against tha defendant? Mr. Shaw — Yes, but the costs will bo taxed upon the assumption that the plaintiff proceeded simply to recover the throe guineas.