RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 3242, 27 June 1872, Page 3

RESIDENT MAGISTRATE'S COURT.

Wednesday, 26th June. (Before A. C. Strode, Esq., R.M.) Friedlich v. Kane.—This was a claim of £3 9s sd, for groceries supplied. The case had been adjourned on a previous occasion •owing to the absence of the defendant, who had gone to Preservation Inlet. His wife now stated that she had since heard from her husband, who would not return for some months. She also stated that the charges made for groceries were in reality for drink ■supplied to her husband; but this was denied "by Friedlich. Judgment was given by default for the amount claimed, together with -costs. Buckingham v. Haines.—Claim of £6 12s, balance of amount of cash lent. Judgment

was given for plaintiff for the amount claimed, with costs.

Keast v. Wye.—Claim of £4 ISs, for ale and porter supplied. Judgment was given for plaintiff by default for the amount claimed, together with costs. Clark v. Brough.—Claim of £43 6s sd, for board and education for one year of a boy namedAichieWilliamson. MrStout appeared for plaintiff, and Mr Haggitt for defendant. Mr Stout, in stating the case for the plaintiff, said that Brough had a wife in town, but also kept a second wife or housekeeper up-country, by whom, according to his own admission, he had had several children. He sent those children to a school at Clyde, kept at that time by plaintiff, and among them was the boy Archie. Mrs Williamson, the boy's mother and Brough's housekeeper, came down to Port Chalmers some time after plaintiff had left Clyde, and spoke to the latter about Archie, arranging that he should go to his school and live with him. Mrs Williamson afterwards married, and left the children, going with her husband to Sonth America. Brough since that time had maintained the other children, and the plaintiff kept the boy, for whose maintenance and education he brought the present action, i Brough now said that Mrs Williamson should pay for Archie ; but he would produce letters showing that defendant maintained the other children, and in one of which he admitted his paternity. One of the letters was as follows:—"My dear Lizzie—l tried several commencements, but I had to come back to the old one"

Mr Haggitt objected to the reading of the letter. This letter, which was written after Mrs Williamson had married, and so long after the time when this child was taken over by Mr Clark, could certainly have nothing to do with any contract between Mr Brought and Mr Clark. A letter addressed to some one else, and written a long time after the cause of action arose, was quite irrelevant to the present question. _ Mr Stout contended that he was quite at liberty to make use of any admissions bearing upon the case.

The Magistrate thought it .mipht.be read, if it contained any admission by defendant of his liability. Mr Stout then proceeded to read extracts from the letter, as follows : —"My Dear Lizzie—l tried several commencements, but I had to come back to the old one, because although you are another man's wife, I cannot forget that you are the mother of my children. Irecei ved your telegram to send the boy sto Pigroot. I saw them this morning, and they were all well. I received the envelope with Clark's account," which I now return to you. . . . Macassey tells me that if I will pay £3 per week I will be exempted from further liability, and for that sum the children will be accommodated. Is Archie to be left behind, or do you take him to South America 1" Mr Stout then went on to contend that Brough was liable for the maintenance of the child, as he had recognised Mrs Williamson as his agent, and on account of the relations existing between Mrs Williamson and himself. He then called, Samuel, M. Clark, the plaintiff, who stated that he was a schoolmaster at Anderson's Bay. He had Archie Williamson living with him from 13th January to the early part of December—during the school year. Mrs Williamson placed the boy with him. This boy formerly attended witness's school at Clyde, but was not boarding with him, as he was then living with Brough. Mrs Williamson placed the boy at the Clyde school. Witness had seen Archie Williamson make application to Broiigh for money to pay the school fees. Mrs Williamson at this time was living with Brough. Mr Stout, at this stage, wished to put in several letters—including the one he had read—as evidence, but Mr Haggitt objected. The Magistrate, after reading the letters, said he failed to see how defendant could be regarded as having admitted his liability by recognising Mrs Williamson as his agent. He was a member of the legal profession, and he _ba^U-oiw?ofully~guarcled himself. -- i Cross-examined : I was asked by letter if I would take Archie. Since that time, Mrs Williamson had married aMr Percy. Mrs Williamson did not pass under the name of Mrs Brough. Helena Clark, the wife of plaintiff, stated that she lived at Clyde two years ago. Mrs Williamson then kept house for Brough. She was there for about 18 months before witness and her husband left. Mrs Williamson, had a child shortly after she went up to Clyde. Mr Haggitt submitted that the plaintiff should be nonsuited. There was not a tittle of evidence to connect Brough with this child in any shape or way, and it would be impossible under the circumstances detailed in the evidence—even supposing the letters produced were to be read, and taken into account against defendant—to make out any case against him in regard to this child. He was informed that Brough had nothing to do with this particular child; but even supposing it was defendant's illegitimate child he would not be liable to pay. He apprehended that Percy was the person who was liable, and both Percy and Brough could not be liable at the same time. The Magistrate said he was of opinion that this was not by any means a strong case. The contract arose between plaintiff and Mrs Williamson, and he did not see any connection between Williamson and Brough as regarded this contract. It appeared that Mrs Williamson never used Brough's name, or passed herself off as his wife. It seemed to be admitted that she was living with Brough in the capacity of housekeeper. The liability now attached apparently to Percy, aiul no other person. Upon the evidence he could come to no other conclusion than that there was no case to call upon the defendant for an answer. Mr Haggitt asked if costs would be allowed. . The Magistrate said the circumstances were such as would not warrant him in saddling the plaintiff with costs. He thought Mr Clark, between two stools, had fallen to the ground. Sangland v. T. Reid.—Claim of £3 13s, for bricks, stone, lime, &c., supplied. Judgment was given for plaintiff by default for the amount claimed, with costs. Tidman v. Alonzo Grannan.—This was a fraud summons calling upon the defendant to show cause why a judgment obtained against him for a certain debt had not been satisfied. The defendant, on being sworn, said that when he contracted the debt he was in receipt of £2 per week. For some time he had been out of work, and owing to his having unfortunately to satisfy another judgment he was unable to meet the present claim. The Magistrate said the defendant could not attribute his difficulties to misfortune, as they were entirely owing to his own persistent misconduct, which made him in a way a plague to society. He would make no order at present, but would advise defendant to satisfy the judgment at once. THE DISPUTE JN CONNECTION WITH THE BIRTHDAY HANDICAP RACE. Rossbotbam v. James.—The plaintiff in this action sought to recover £11 Bs, money received by defendant, as Secretary of" the Tradesmen's Races Committee, for the use of plaintiff, namely, the amount of stakes won by plaintiff's horsej Saladin, on the 24th May, £12, less 12s.

Mr Stout, who .appeared for plaintiff, stated that he sued as owner of the horse which came in second in the Birthday Handicap, won on the 24th May last, at the Forbury Racecourse. In this case, His Worship would have mainly to do with the interpretation of a rule under which the horses ran. Saladin's jockey was weighed out before the horses started, and Saladin came in second, when the race was finished. He was then ridden into the weighing paddock ; the jockey jumped off the horse, and went into the weighing room. He forgot to take with him his bridle, and he was consequently under weight. One of the stewards then ran out and brought the bridle, and the jockey was declared to be due weight. The only protest lodged was one by Mr Gourley, the owner of Bobby Burns, the third horse. The protest was as follows :—" I hereby enter a protest against Saladin receiving the money accruing to the second horse, as he was led away from the

scales before his rider was declared weight." The real questions His Worship would have to decide were: Was the horse led away before he was declared weight ? and supposing that he were : Does that disentitle him to receive the stakes? He (Mr Stout) would contend, first, that the horse was not led away ; and second, supposing that he were led away, that fact would not prevent Saladin from receiving the stakes. Mr Stout, after having addressed the Court at considerable length, called the following evidence:—

R. Ilossbotham, the plaintiff, stated that he was the owner of the racehorse Saladin, which came in second in the Birthday Handicap. After the horse passed the winning post, and Little Nell, the first horse, had been weighed, Saladin came up in front of the Secretary's office, and his rider was ordered out of the saddle. The scales were in the Secretary's office. The jockey went in with the saddle in his hand, and was weighed. He was not weight, and Mr Dowse (one of the stewards), came in and asked, "Are you weighed?" He replied, " No, I forgot my bridle." He remained on the scale while Mr Dowse Avent out to take the bridle off Saladin. He brought it in, and placed it in the jockey's hand. The Secretary (thedefendant) then said "Right," and checked it off in his book. Witness got no notice of the stewards' meeting held to consider the protest.

Cross-examined : I was one of the stewards of this race. I have seen the published programme of the races, in which it is stated that no entry should be made except under the condition that the decision of the stewards should be final. I had a conversation with Gourley, and he said he would withdraw the protest ; but I found out afterwards that he did not withdraw it.

Caleb Moore stated that he was at the Forbury Racecourse on the 24th May. After the Birthday Handicap had been run, Matness went in with the first or second horse into the saddling paddock. Witness then went into the Secretary's office, which was also used as a stewards' room and weighing room. Witness saw Saladin's rider on the scales. The Secretary said he was not weight. Saladin's rider replied that he had not got his bridle. Mr Dowse got the bridle for him, and the Secretary then said "Right," upon which the boy left the scales. No objection was made to the weighing of the jockey. Witness understood by the word " Right" that the jockey was weight. Thomas Thomson stated he had charge of Saladin at the Stewards' room door after the race was finished. The jockeys dismounted there and went into the room. Witness remained there a short time, but was pushed away from the door by the third horse coming up. Was pressed away about six or seven yards. Mr Dowse came tunning out of the room, and said " Why did you move off? The jockey wants his bridle." He then in great haste took off the bridle and returned to the room.

James Tanner, Saladin's jockey, stated that after the Birthday Handicap he was weighed in the Stewards' room, and was declared weight by the Secretary. When he first got on the scales the Secretary said he was not weight and ordered him to stand down. He did so while Mr Dowse ran out to get the bridle. He then" stepped on the scales, and was weighed. When he weighed out he declared lib overweight. Could swear that the bridle with which he was weighed in was the same one that he weighed out with.

Arthur Smith said he understood the term "weighing yard" to mean an enclosure where the scales were kept and the horses and jockeys admitted. There was no weighing yard proper at the Forbury Racecourse on the 24th May. Supposing there was a weighing yard, witness would consider that a horse was not away from the scales while he: was within the enclosure.

G. Dodson stated that he saw Saladin led away from the door of the room. He believed he heardJjrourley_say__to the man in. charge of.Salaclln something to the effect that he should move away, and make room for Bobby Burns.

Cross-examined : When Mr Dowse came out for the bridle, Saladin was 20 yards away from the door. He was not pushed away by Bobby Burns.

John Gardner stated he was present at the Forbury Racecourse on the 24th May. When Mr Dowse took the bridle off Saladin, he was about nine or tea yards from the door of the steward's room.

Mr Harris, in opening the case for the defence, said that when Mr Rossbotham entered his horse for the race, he was, as he had admitted, perfectly aware of the rules and conditions under which the entry was made, and thathe wasbound by the rules and regulations of the Dunedin Jockey Clubreferred to in thepublished programme. Oneoftheconditions was that the decision of the Stewards should be final, and that no entries should be accepted unless on that condition. From the evidence already given it appeared that plaintiffs jockey had acted in a manner which disqualified him from receiving the stakes. The 42nd rule provided that " A jockey who receives from any person any article, however trifling, after he pullsup, although he may have dropped the same previous to being weighed, shall be disqualified from riding at Dunedin or on any course on which the Dunedin Jockey Club may in future hold their meetings, for such period as the Stewards may think fit; and the horse shall be adjudged distanced in that race." From the evidence of the jockey himself in the present case it would be seen thathe went into the room and weighed without his bridle ; that he was.short weight, and went off the scales until he received the bridle, which he left on the horse. Mr Harris then cited two cases which had been decided. In one of them a horse was disqualified because he was incautiously led away from the weighing stage, and the jockey, who was short weight, was not allowed to take the bridle. The law courts had always discouraged any appeals to'them from the decisions of Stewards with regard to horseracing, and other sports in which gambling of any sort was concerned. In one particular case the Chief Justice said " The time of courts should not be taken up in deciding whether such and such a bet was won or not, when the Stewards had power to determine the question." The decisions went to show that it the Stewards had acted to the best of their judgment, although they might be wrong,, the courts would not interfere ; and if the Stewards had not taken into consideration any circumstance, the matter was referred back to them for reconsideration. It was. the wish of the Stewards in the present case to hand over the stakes to the plaintiff "if it were possible, and it was with, extreme regret that they felt obliged to award the stakes to' another party. He would read the minutes of the meeting which was held the evening after the race had taken piece. "The Secretary brought forward several protests which he had received during the meeting, with the following result:— ... The second protest was one from Mr Gourley, the owner of Bobby Burns, protesting against the owner of Saladin receiving the money accruing from the sweepstakes, on the ground that the horse was led away from the scales before the rider was declared weight. After hearing the evidence of Mr James, it was unanimously resolved that the protest should be sustained, in accordance wi h rules 42 an'l 43, and the stakes handed over to the horse placed third by the judge." The Stewards, looking at the irregularity which had occurred, considered it would be useless to have any rules unless they were enforced. Mr Harris then called the following evidence :—

Sydney James, the Clerk of the Scale at the Forbury Bacecourse on the 24th May, deposed : The usual weighing place is in my office. There has never been, any weighing yard here. I consider that a horse is led away from the weighing place when he is taken away from the room door. Tanner (Saladin's jockey) weighed out Sst 3lbs, exact weight, with his bridle. He did not declare lib over weight. I cautioned him, as he was very bare weight, to be careful and bring it back with him. After the race he returned to the scale and was not then just weight. I called his attention, to it, and he said in an

excited way, " Where's my bridle ?" I also called Dowses attention to it, and he left the room and went down the paddock. I looked out of the door to see if Saladin were there, and found he was Hot. Dowse brought back the bridle and handed it to Tanner, whoml then weighed, and called out "Right." About ten minutes afterwards, I received a protest from Mr Gourley, the owner of the third horse. This matter was considered by the Stewards on the following eveiring at their usual place of meeting in the Empire Hotel. Mr Rossbotham was not present at the first part of it. Rossbotham had every opportunity to offer evidence, but did not offer any. He had a conversation with Gourley, telling him he expected he would have withdrawn the protest, and Gourley replied that he had intended to do so, but something had taken place downstairs, and he was determined to insist upon his legal rights. Rossbotham told the Stewards that if they went to South Ward to get auy money he would use all his influence to preveiit their getting any. The Stewards did all they could to induce Gourley to withdraw his protest. They were desirous that Rossbotham should get the stakes.

Cross-examined : Gourley and Rossbotham were asked to leave the room after the latter had full opportunity to make any statement he liked. I do not know whether he was present when a decision was anived at. Marshall, the Treasurer, was present at the meeting. He is not a Steward.

Hugh Gourley, the owner of Bobby Burns, the third horse, stated he was present at the weighing of Saladin and Bobby Burns after the race. When the bridle was brought back to Tanner, he was pff the scales, and Saladin was away from the door. Witness had received the stakes from the Secretary. Witness never positively told Rossbothain that he would withdraw his protest. He said, "Perhaps I may withdraw," or, "I think I may withdraw."

' Jos. W. Hutchison said he had attended all the meetings held at the Forbury. The usual place of weighing had always been the Secretary's room. Witness considered that the horse must remain where the jockey dismounts until he is weighed. If the horse were removed he would be disqualified. Jno. Stephenson, President of the Dunedin Jockey Club, stated that he was chairman of the meeting of Stewards, at which Gourley's protest with regard to the Birthday Handicap was considered. Rossbotham was present, but did not offer any evidence. The usual weighing place was in the Secretary's room. George Dowse, one of the stewards of the races on the 24th May, stated that he saw Tanner, after the race, get on.the scales. He was short of weight and asked for his bridle, Witness volunteered to get it, and on going out, could not find the horse. He went up the saddling paddock, and found Thomson leading the horse about 15 yards away. Witness went up to him and said, " What a fool you are, don't you know you can be disqualified for this ?" Witness then took the bridle and returned to the office. — Crawford gave corroborative evidence. The Magistrate said that in his opinion the proper persons to decide the question raised were the Stewards ; but as it had been submitted to him, he would give his opinion. He thought the evidence* disclosed, without the (shadow of a doubt, that an infringement of rules 42 and 43 had been committed by plaintiffs jockey, and therefore his-case must fail. Judgment for defendant.