THE DEMURE DEAL

Wanganui Chronicle, Volume LXXXIII, Issue 19511, 13 February 1926, Page 8

THE DEMURE DEAL

CLAIM FOR £2350 DAMAGES

HEARING EXTENDS TO THIRD DAY

CASE FOR THE DEFENCE

A long day at the Supreme Court yesterday was devoted exclusively to the racehorse Demure, which even in her track appearances has hardly been the subject of so much interest. It was disclosed that more than one familiar name was bestowed on the filly. A trainer said yesterday that his boys did not know her as “ Mad Molly, ’ ’ but as “Mary,” a more affectionate term. The last stage of the pro-, traded hearing was reached last evening, Mr. B. A. Howie, solicitor, being the last witness for the defence. To-day addresses by counsel will be heard.

THE DAY’S EVIDENCE.

‘ BASIS OF THE ACTION. THREE VITAL CLAUSES IN AGREEMENT. During the proceedings His Honour Mr. Justice MacGregor characterised much of the evidence for the defence as unnecessary and irrelevant, and he reproved Mr. L. Cohen (plaintiff’s counsel) for being “theatrical.” Three clauses in the agreement between the parties over the lease of Demure were the subject of close investigation. Duncan Lourie, a Turakina sheepfarmer, asserted (1) that Mitchell had neglected the welfare of the mare, which was leased to him for a term; (2) that he had not paid over percentages of stakes as required; (3) that he had not furnished notice in writing of his intention of running the horse. These breaches, he claimed, justified his taking the marc on December 5, for which seizure plaintiff claims £2,350 damages. Evidence for the plaintiff was continned yesterday morning. j Jockey’s Evidence. William Mitchell, a jockey, son of the plaintiff, said Demure did well when in his father’s hands. He described the New Plymouth races, where the mare was stabled under a dance hall, and stated that while the dance was on he stayed with the mare, changing her rug at 10 o’clock. At Waverley the mare was similarly well cared ■ for. ■ Mr. Cohen: Did she have a rug? I Mr. Treadwell: Oh! You arc putting I the words into his mouth. ! Witness said she had a rug. Witness said that the defendant, accompanied by Mr. Palmer, visited the stable on November 26. Defendant remarked that the marc did not seem very sore. On December 5 defendant took the mare away. Witness ran after him and asked him what he was doing, taking the mare out without a I rug. He said he was taking the mare away because Mitchell, senior, had (broken the agreement. I James Mitchell, another son of plaintiff, and the jockey who rode Demure jin her last winning race at Levin, described defendant’s various visits to the house. Witness was present when his father offered to settle up for the Ashhurst win. Defendant said: “Wait until Saturday. We will settle up then.” Caring for Demure. William Berthold, the last witness for the plaintiff, said he was a labourer Iby occupation. On October 26 last, in response to a request from Mitchell, he helped to look after Demure at Waverley. Every care was taken of the mare, and she was covered with a I split sack and a rug. Witness looked J after her all day, and was never away ‘from the stall more than five min : utes.

| To His Honour: It was absolutely wrong to say that Mitchell was under !the influence of liquor. Conflict of Evidence. I Commenting on the ease Mr. W. J. I Treadwell (defence) said the whole ! matter resolved itself into very small compass. If defendant could not substantiate his three reasons for taking | away the marc then his defence would I fail. There was a very serious coni flict of evidence, but it was admitted |on all hands that the percentages of stake money were not paid up to time. It was suggested that defendant waived his rights in that direction, but the onus of proving that was on plaintiff. Again there was clause 8, requiring notice of the marc’s engagements to be given. This condition had not been complied with, and there was no evidence whatever of any waiver. Verbal Notification. His Honour: Attempts were made in the evidence to show that Lourie had been made awaro verbally of what races the marc was running in. Mr. Tread-well: As far as I could gather no evidence on the point was call ed. His Honour pointed out that there was some evidence by implication. Mr. Treadwell said there was the question of the treatment of the horse, and on this point the evidence of several witnesses would be called. Defendant’s Evidence. Duncan Lourie, farmer, said that when the agreement was signed Mitchell observed that it was not necessary to have a lease so drawn up. He objected to clause 12, which stipulated that he should not run the horse more than once on any one day, or twice at any one race meeting. Witness saw Mitchell take a copy of the lease given him by Mr. Howie, and he put it in his pocket. Replying to His Honour witness denied that Mitchell did not get a icopy. It was untrue that Mr. Howie told Mitchell it was not necessary for him to have a copy of the agreement. Witness said he had owned racehorses all his life, and had been assoIciated with four different trainers. Citing the alleged breaches of the agreeiment, with reference to the care

the mare, witness said Mitchell told him of the New Plymouth incident, when the mare was stabled under a dance hall. Mitchell told him that the next morning the mare exhibited symptoms of a chill, and did not eat any feed during the whole time she was away. Asked why he raced her, under the circumstances, Mitchell said he had paid up for her, and took the risk. On the second day of the Waverley meeting, witness said, he saddled the mare for Mitchell, who was shaky, and under the influence of liquor. His Honour: And yet you left the mare with him for six weeks after that? Witness: That was Labour Day, October 26. I did not take any action immediately. Out in the Cold. The same day, continued witness, he found the mare in her box without any covering on. A very cold wind was blowing. There was no one with her. After the sixth race he went round again, and she was still uncovered. Witness described subsequent events at the Ashhurst and Levin meetings. He saw the mare on November 29, and thought she looked very “tucked up.” Mitchell said he had been feeding her on oil. Mr. Howie: What docs “tucked up” mean? Witness: She looked hollow, as though she had not been fed. His Houour; If she had been fed on oil I should think she would look hollow. (Laughter). Referring to stakes won by Demure, witness said it was untrue that Mitchell met him in the Avenue and offered him the percentage of the Waverley money. Not until November 29 did witness see Mitchell, after the Ashhurst and Levin meetings. That was II days afterwards. Mitchell said: “I have received the Ashhurst cheque. I will give you a ring on Monday or Tuesday for you to come down, and I will pay you what I owe you.” Witness said he did not hear from Mitchell again all the week. The Levin Engagement. In connection with clause 8, witness never once received notice in writing that the mare was to race. Verbal notice was given for every meeting except Levin. He did not know she was racing there until two days before the meeting, when Palmer told him. His Honour: Who is this Palmer? Mr. Cohen: He is the deus c.c machina. Mr. Howie: He is a friend of Lourie’s. In cross-examination witness said that had he known that Mitchell paddock trained his horses he would have taken the mare home. ?Jr. Cohen: d she improved in Mitchell’s care? —She was growing aud filling out. His Rvionr: Can’t you say ye l ’ cr no ? Air. Cohen: L T p to the time you took her awav, had she gone on improving? —No. The Douro Cup. Diccussing the mare’s prospects Air. Cohen said she was entered in the Douro Cup. Evidently defendant thought she had a chance. Witness: She was not paid up for in the Douro Cup. Why did she not start?—Dwyer told me she had no chance of beating Kilbronsyth. What about second money? How much was it? —Over £lOO. She had a chance for that. You are very independent. Surely that was worth picking up. Witness said Alitchell would still have had the mare if he had paid up the percentages of winnings. Was it on account of 14s. 2d. from Waverley?—No; it was more than that. Have you ever found Alitchell other than straight and frank in his dealings with you?—No. What about his statement that he met you and offered to pay the Waverley percentage?—lt is an entire fabrication. Coming to Waverley, did you refuse to allow Alitchell to start the mare in the last race of the second day?—l declined, absolutely. Did Alitchell tell you at Waverley that he was taking the mare to Levin? —He did not mention it. Alitchell has sworn he did.—l can’t help that. Backing the Filly. His Houour: Did you back her at Ashhurst?—l put £2 on her. Did you back her at New Plymouth? —No. At Levin?—No. His Honour: You must have thought that she was in good condition to back her at Ashhurst. Witness: I backed her at Waverley as well. The Psychological Moment. When you went to get the mare, why did you take Mr. Palmer with you?—l just asked him to come down to get the mare. Mr. Cohen: He seems to have had a habit of always turning up at what journalists call the psychological moment. (Laughter). Witness said that when the boy Mitchell approached fiiiri when he was taking the mare away, the boy said: “Don’t go crook about not being put

in once.” He apparently meant that witness had not been given a tip about the horse’s good running. At Waverley, said witness, Alitchell was under the influence of liquor. There was no canvas cover in the horse’s stall; only a split sack, without lining. His Honour: Perhaps the wind had blown the lining out of the sack. (Laughter). Have you had an offer from anyone for Demure since .Air. Alitchell had her?—No. Have you had any suggested offers? —Yes, I have had suggested offers. What were they?—l would rather not say. The Price of Demure. Afr. Cohen: I’d rather you did; I might be a buyer. Witness: Y’ou can have the four horses for £lOOO. Air. Treadwell: Now, Air. Cohen. (Laughter). , Air. Cohen said that yesterday counsel had included Demure’s dam in the offer. His Honour: Oh, and a rug thrown in. (Laughter). Mr. Treadwell: If Afr. Cohen will accept the oiler he can have the rug, too. Air. Cohen (to witness): Will you make that offer on oath, and leave it open for a week? His Honour: Oh, come Afr. Cohen, what has this to do with it? Air. Cohen: I was only trying to impress your Honour’s mind. His Honour; It docs not impress my mind in the slightest. Defendant had been over three hours in the box when the examination ceas cd. Mary, not Molly. William Dwyer, the horse-trainer into whose care Demure was delivered after she was taken away from Mitchell, said the mare showed signs of stiffness. His Honour: How j s this relevant? Air. Howie: It shows the treatment she had. His Honour: What is the use? All the evidence goes to show that she was never fitter or better in her life than she was a week before Mitchell parted with her. Dwyer said the horse was never called “Alad Molly” by his boys, who called her Alary. To Mr. Cohen: When I first had the mare she performed satisfactorily in trials, and showed that she would do all right in time. She was an overgrown filly. „ In answer to a question from Mr. , Cohen witness said he must have been talking to himself. Mr. Treadwell: Just as Mr. Cohen is. Air. Cohen: I am not talking to myself. Air. Treadwell: I wish you were. (Laughter). All. Cohen: That is because you do not like the answers. An Intimate Friend. Charles Arnold Pitt Palmer said he was an intimate friend of Louric’s. He heard Alitchell tell Lourie about the New Plymouth incident, when Demure was stabled under a dance hall. Alitchcll told them that the mare was so frightened that she looked as though she had been swum through a river. Lourie asked if the mare was left there all night and Alitchell said “Yes, and she had a bit of a chill in the morning.” Asked why he started the horse Alitchell said he did not think at the time it would do lier any harm.

At Waverley on Labour Day witness met Alitchell, who asked him if he had seen Lourie, just after the third race. Alitchell wanted to start the mare in the last race. Witness went with Lourie to the marc’s stall. The marc was not covered. There was no one else there. Lourie tried to cover the mare with a split sack that was lying there. No rug was visible. A cold wind was blowing into the stall. Witness did not see the mare again that day, but saw Alitchell, when the latter was trying to fill in a consignment note, which witness filled in for him. 4 ‘Alitchell’s breath made me think he had been drinking, and his mannci made me sure,” said witness. Witness said that later on he saw the mare at Mitchell’s stable. She appeared to be lame. Bad Alanagement. To Afr. Cohen: It was bad management that Alitchell left the horse under a dance hall. He should have ascertained that there was a da-ce on. You don’t think it was bad luck?— No, I think it was bad management. Have you any interest in Demure?— Only a sentimental interest. (Laughter). When you saw the marc at Springvale was she in good racing condition? —ln fair racing condition. Are you a judge?—l have seen a good number of racehorses. Mr. Cohen: So have I, to my sorrow. After further questioning, His Honour remarked: “Air. Cohen, the witness is only trifling with your questions, but don’t be so theatrical.” Relevancy of Evidence. Other witnesses were called. Regarding some of the evidence His Honour said he did not think it relevant to the main issues of the case. Eventually, at His Honour’s suggestion, Afr. Howie gave evidence. He said that when the agreement was read out to Mitchell he characterised it as “nonsense,” and disagreed with, at least one of the clauses. “I am perfectly certain that Alitchell said the lease was nonsense, and stuffed it in his pocket when I gave him a copy. I am certain of Mitchell’s action on this occasion.” Air. Treadwell said it was important as it concerned the credibility of Mitchell. Air. Cohen: Oh no, it doesn’t. His Honour: That is for me to say. Air. Treadwell: In your letter to Air. Cohen you told him you had given Alitchell a copy?—That is so. Did you ever tell Alitchell it was unnecessary for him to have a copy of the document?—No, I did not. Did you give him a copy?—l did. Air. Howie pointed out that Alitchell had said ho would carry out all the terms without a document. A Breeze Gets Up. Afr. Cohen persisted in his questions on the line that Air. Howie should have advised Alitchell to get a solicitor. Afr. Howie: I will have a legal argument with you some other day. Air. Treadwell: He can advise you outside. (Laughter). His Honour: How does this concern me? Air. Cohen: I don’t know. Air. Howie: Is this intended to be