SUPREME COURT.

Lyttelton Times, Volume LXXX, Issue 10219, 13 December 1893, Page 3

SUPREME COURT.

CIVIL SITTINGS. Tuesday, Dec. 13. (Before his Honor Mr Justice Danniaton.) O’bEIEN V. BTEAD—THE CHALLENGE LTAKE3 CASE. Mr H. D. Ball, with him Mr Lana, for plaintiff; Mr Fisher, with him Mr Stringer, for defendant. Mr Bell addressed the Court generally upon the facts and law of the case. Thera was, he said, nothing in the conditions of the race preventing it from being called and considered a sweepstake. The stakes being made up by the owners of the horses entered, the elements of a sweepstake were imparted. A sweepstake could be also made with added money by the Club, but in this race the sum was an uncertain one, subscribed and made by the owners, the amount of £2OOO only being mentioned as being the sum likely to be reached. The payments in respect of the race were called forfeits, and would be so defined by anyone unacquainted with racing. The plaintiff did not seek to only recover the forfeits, but theso alone would amount to a very substantial sum, and considerably over £2OOO, as only £4OO had not been forfeited. His Honor asked what was meant by ‘‘stakes and forfeits." Did stakes mean the same as forfeits—did the word cover the same ground and also more ground than forfeits did ? Would not the word *‘ stakes ” have been sufficient, and would it not have covered “ forfeits ?” Mr Bell said that from this he would take it that if the forfeits went to the winner, the stakes would also go. Hia Honor said that if anything over £2OOO had to go to the winner the whole of the moneys that bad been subscribed would go. Mr Boil said it had been said that entrances always went to the Club. That might be a practice, but there was nothing in the rules to show this, and the witnesses had not stated it. This, then, was a fact that persons non-coaversant with racing would be ignorant of. If the conditions called the entrance moneys forfeits to be forfeited inuvery case, the rule would be established. The Challenge Stakes had been altogether found and made up by the owners. This the plaintiff had objected to hi respect of some horses of his—not Loyalty, because he did not enter that colt for the race. It was a well-known fact that nominations did not go to the Club in an ordinary race, but that they went to form part of sweepstakes. Now the word nomination was used throughout the programme. The entrance fee was distinct from the nomination fee in all races. “ Subscription ” was used in this race in a way in which it had not been used before in New Zealand. The race was a novel one, and the conditions had been entirely novel also. The payment of entrance moneys had been provided to be made in a manner in which moneys other than entrance moneys wore generally paid. It was probable at that time that no one ever thought that the subscription would exceed £2OOO. The plaintiff had been of that opinion, too. The course of payments on this race bad never been adopted in New Zealand before, and they had been called uncommon. The defendant said that such moneys were entrances, and that entrances went to the fund. The plaintiff denied this, and stood upon the ground that the payments were subscriptions making the stakes. The Challenge Stakes bad previously bean a sweepstakes, and the name had not boon altered in this race. It was manifest that the gentlemen who drafted the conditions of the race bad not intended it to be a sweepstake. This could, hot be denied; but such intention, unless distinctly expressed, bad no bearing on the chcs. Racing men taking up the conditions hud to gather from thorn what the race was, and it had been shown that mea with much experience in programmes and conditiOQ?, considered it to jj© » Bweopstakes^

A clausa could have been inserted in the conditions causing the subscriptions to go to the Club; but this had not been done; and such a clause could not be found. The race was a contract with all the world; and the conditions bad to be the same to everybody and understood by everybody. There was no evidence to show that the circular explaining the contract had been Bent round to anybody; and all the contract could be held to be baaed on was the advertisement and the programme. That circular read still more strongly, however, in favour of the construction of the programme that the race was a sweepstakes, aud if the circular was to be argued on, this would be the point the plaintiff would make. The circular could just as well read as an announcement of a sweepstake race as not. It stated that the owners were running for their own money; and reference was made to the possibility of the breeders escaping liability. This bad reference to Rule 72, which provided that the subscribers to a sweepstake were liable for the stake. The defendant maintained that the reference was to Rule 83, but this certainly could not be, as a reading of the two rules would show. Mr Bsll then dealt with Rules 25, 20, 32 and 121, dealing with the powers of the Stewards to adjudicate upon the programme. The word “subscriber" was used specially in connection with a sweepstake, and “subscription” in describing moneys paid in respect of a sweepstake. The rules provided that the Stewards should furnish all accounts in connection with a sweepstake and pay the moneys over within fifteen days of the meeting. This was what the plaintiff now prayed. Mr Bell then dealt with the question of the Stewards adjudicating on the matter, submitting that .they had had no power to do so. They had not met or discussed the question. He quoted 6 Victorian Law Reports, Law 293 in this connection, 124 Australian Reports, the recent Wellington case (M’Kinnon v. the Wellington Racing Club); Pollock on Contracts page 318; the New Zealand Statutes; 10 Irish Reports, Common Law, page 248, appeal case dealing with the contract made by the Canterbury Jockey Club. The evidence given by the witnesses of the defendant, he said, mostly came from the Canterbury Jockey Club. Nearly all the witnesses were members of the Club, and a great mass of evidence on the opposite aide had been adduced from impartial men of experience. The Club, it had to be held, had no sort of intention of defrauding Mr O’Brien and honestly believed that the race was as it intended it to be. The evidence for the plaintiff had been given by men whose business in life it was to be conversant with racing matters, and their interpretation of the programme and circular was that the race was a sweepstakes. If hia Honor was satisfied that this evidence was honest and competent, and unless it was overwhelmed with contra evidence, hia Honor must hold that the contract had been established in the way the plaintiff asserted it was.

Mr Fisher said that Mr Bell had taken up the position that if the race was held to be a contract in a certain form, the plaintiff was entitled to succeed. An artificial meaning had been placed upon the race and its conditions. A sweep in the first place was a race the stake for which was made by the owners. The plaintiff wanted the Court to believe that in a sweepstake the whole of the moneys paid in respect of the race went to the winner whether such was stated or not. Mr Fisher submitted that these pleadings (on Rule 6) fell to the ground in the light of the advertisement announcing the race, and especially the circular. The interpretation sought to be placed on the race was a very forced one. There was nothing to show that the Club would make up the £2OOO unless fifty horses remained in. It was not a case in which entrances were invited and the whole of the moneys handed over to the winner. Rule 74 had been appealed to, bat the defendant submitted that stakes and forfeits could not and did not apply to any race but a sweepstakes, and it was only in such a race that the winner was entitled to an account. The stakes, it had been said, meant subscriptions, and subscriptions in respect of a sweepstake. In the programme every sweep was so designated in the very first line of the description, and in all the other cases the word “ subscription" was not used, or “ entrance,” except where it went to the funds. The only place where “subscription” is used was in the Challenge Stakes; The inference was that subscription could not be synonymous with a sweepstake, even if it was with entrance. All the witnesses for the plaintiff, with one or two exceptions, agreed that the word subscription was applicable to other races than sweeps, and the defendant’s witnesses said that subscription was not applicable to a sweep, but meant the same as entrance. All agreed on both sides that a sweepstakes was invariably so-called, and the programme proved this. In none of the sweeps was any contribution called a subscription, and therefore if the word subscription was synonymous with entrance in races which were not sweeps, what justification was there for using it to give the character of a sweepstake to a race wherein the word was used ? The word was an ambiguous one, and it could not give a special character to a race. The alteration in the language of the two Challenge Stakes Races obviously implied an alteration in the intention. The whole char act ar and description of the race in 1893 was altered from that of 1891, and the Club could not to sporting men have made the character of the race more plain than it did by the omission of the word “sweepstake.” It was described as being a race certainly “ by subscription, of 25 guineas each"—but the Club went on to s if “ total entrance,” which went to remove ail ambiguity—if any existed—from the words “by subscription." win entrance always went to the Club, so therefore the words “ total entrance " was quite sufficient to make the moneys go to the Club, end could leave no false impression behind as to the destination of the fees. The evidence oi the Auckland witnesses' was practically valueless, because they had ail fallen into the error of supposing that the Club could not, under any circumstances, lose money by reason of a proviso regarding fifty horses staying in the race. This was not co, for in that case the Club would lose £B4O. It showed that the witnesses did not understand what they were talking about. The circular was worded in a way that precluded the idea that the race was a sweep. The Canterbury Jockey Club relied upon encouragement “ to provide a prize of £2000,” so the circular ran. No entrance money was paid in respect to a sweep, and all racing men were bound to know that the Challenge Stakes was for a prize and not a sweepstake. £25 was paid by Mr O’Brien to run for the Derby of £BOO, and yet he expected to run for £2OOO with £25. He Vmd evidently thought that the Challenge Stakes was a plate, and he had objected to tanning in it because he said he would be running for Isis own money, and that the Club would make money out of tho race. Mr Bell had shown no contract between the original owner of Loyalty and the Club, and it was probable, therefore, that the colt had been entered under the contract as the defendant understood it. If thia wsa so, then the contract had been made and accepted in the defendant’s way of interpretation, and Mr O’Brien, interpreting it in another way, had no case. In this interpretation of the racing' phraseology used in tho document the weight of evidence was on the side of the defendant. The use of the word “forfeit" was made a point by Mr Bcli, but he had used it in the wrong cense. If a person made a payment in respect of a race and did nothing he forfeited the money. Bat in this case he had to do something—he had to pay a forfeit, not forfeit a payment. This was quite unprecedented. The owner ot a home that had been entered had to pay a forfeit to go out of the race. That was not the sort of forfeit contemplated by Rule 74. It was in reality a fine. Mr Fisher quoted 2, Law Reports, Scotch Appeals, page 214, •in connection with the construction of firms, Mr O’Brien had clearly acted cn the construction that tho race was a plate and had paid and received money under that assumption. Ho bad not extracted with ths Club ' pa the

basis of the race being a sweep, and he had not raised, the question until some time after the race. Had the decision of the stewards been required by Mr O'Brien he should have moved them. The entries were only taken under the condition that the decision of the stewards on all matters regarding disputes, claims and objections should bo adjudicated by the stewards, whose decision should be final. This effectually prevented Mr O’Brien from going beyond the stewards. His was a claim arising out of the racing, and it should have been decided by the stewards, and until he had referred it to them it was impossible for him to claim the jurisdiction of the Court. It was not for the stewards, to take the first steps towards adjudicating upon the ease; Mr O’Brien should have taken it to them, and not to the stake-holder and treasurer. Buie 25 said that the stewards had power to determine all disputes, &c., at or with reference to anything done by any person, and the power of the etewards extended after the race meeting. Bale 28 gave the stewards power to consider any question not provided for by the other rules. The objects of these rules were to keep the Club out of Court, and Mr O’Brien should not be allowed to invoke the law before he had exhausted all reasonable efforts to get his case tried before the tribunal constituted by the Club. He had agreed to those conditions, and be should be compelled to abide by them. In 25, Law Journal, was a case completely bearing oat this contention, wherein the Justice had held that a club should not be brought into a Court of Law before it had been shown that it was incompetent to deal with the questions at issue. The Wellington Club case quoted by Mr Bell was not at all the same as this case in many of its points, and the judgment of Mr Justice Eichmond therein could not have any bearing on this case. The witnesses of the plaintiff were gentlemen who would be interested in picking holes in the Canterbury programme. There was often a good deal of rivalry and jealousy between Clubs in different towns. No witness had been called, who was an owner of a horse in the race, to eay that he understood the race to be a sweepstake. It probably was because they did riot exist; because every racing man who had studied the programme must have seen that the race was for a fixed sum.

Mr Stringer addressed the Court upon the principles which should guide consideration in the case, and cited Ford v. Beech, 11. Queen’s Bench reports, page 152, and other cases. The plaintiff came into Court with an admittedly ambiguous contract, relying upon two words for the interpretation of that contract. Therefore the point for decision was, which construction was the legal one. Mr Bell, in his reply, referred to authorities dealing with the law principles of the case, and replied to the points raised by Mr Fisher and Mr Stringer. His Honor took time to consider. Andrew j. h. bower (appellant) T. THE official assignee of TiMABU (respondent). Mr Joynt, with him Mr Hay, appeared for the appellant, the Hon Downio Stewart, with him Mr Eincerney, for the respondent.

This was an appeal from a decision of the District Court at Timatu, dismissing a motion made by one A. S. H, Bower, of Leslie, Scotland, for an'order that the Official Assignee of the property of D. M. Boss should deliver to Bower or his agent the scrip or certificates of certain shares alleged to belong to . Bower standing in the name of Boas, and should execute a transfer of the came to Bower.

. The shares in question were 116 shares in the Tima.ru Gas and Coke Company (old ibsue) on which £5 per share had been paid up, and 92 chares (new issue), on which £1 10s per share had been paid up. Boss after having been appointed Bower’s attorney and agent, had had the ( 115 shares transferred to him to enable him to become a Director of the Company, the memorandum of the transfer setting out that Bower, in consideration of £IOOS 5s paid by Boss, had made the transfer. Boss had afterwards been rendered bankrupt, and the scrip had been included in his assets and held by the Official Assignee. Bower had applied to the Assignee to deliver the scrip and transfer to him. but the Assignee had declined so to do. Bower moved the Court for an order, when it had been held that the shares had been transferred to Boss by the appellant fraudulently, for the purpose of enabling Boss to obtain commercial credit and to become a Director in the Timaru Gas Company, and that credit had been obtained by Boss by means of such transfer and the registration of Boss as the owner of the shares; that the shares were at the time of the bankruptcy of Boss in his possession as reputed owner thereof by the consent and permission of the true owner; and that the same ought to be sold and disposed of for the benefit of the creditors under his bankruptcy. The question now for the determination of the Court was whether or not this decision of the District Judge was erroneous in point of law. •> After partly hearing counsel, his Honor at 5.30 adjourned the argument till 11.30 on the following morning. IN BANKRUPTCY. DISCHARGE. Mr Boawick moved for the discharge of Bichard Brown. The report of the Official Assignee being a very favourable one, his Honor granted the discharge forthwith. be harper and company. In the matter of Leonard Harper hia Honor made an order in reference to the costs subject to the general practice, the Official Assignee applying for their taxation. A motion by Mi Beswiok in re G. Harper, L. Harper and T. W. Maude, was adjourned by consent. [Per Press Association.! WELLINGTON, Die. 12. In the Divorce Court the case of Watson v. Watson and Shaw, a petition by John Watson, farmer, of Eumeroa, for dissolution of hia marriage with Cecilia Watson, on the ground of alleged adultery with a man named Bobers Shaw, was heard. The parties were married at Napier in I§B6, and lived together between six and seven years. Mr Baker, of Palmerston, appeared on behalf of the petitioner. A decree nisi was granted, to be made absolute at the end of three months. A petition by the wife for judicial separation was dismissed in the absence of the petitioner.