A Racing Law Suit.

New Zealand Illustrated Sporting & Dramatic Review, Volume IV, Issue 162, 31 August 1893, Page 3

A Racing Law Suit.

Mr D. O’Brien some time ago issued a writ against the Canterbury Jockey Club for the recovery of stakes and forfeits that he alleged were due to him over the Challenge Stakes. The case assumed one phase of what promises to prove interesting proceedings to racing men on the 23rd inst., when the application of the Canterbury Jockey Club to have the interim injunction granted by His Honor Mr Justice Denniston restraining the stewards from hearing and determining the objections made by Major George dissolved, was heard. Mr Harper, with him Mr Lane, for the plaintiff, Mr Fisher for defendant, and Mr Stringer for Major George. The (statement of claim set forth that Daniel O’Brien, the plaintiff, was a trainer and owner of horses for racing purposes, and the defendant, G. G. Stead, the Treasurer of the Canterbury Jockey Club. In 1890 the said club issued a programme of races to be run at the autumn meeting of the club in 1893, and therein was an item ‘ The Challenge Stakes of 2000sovs, the nominator of the winner to receive 1 OOOsovs, the owner of the second horse 200sovs, and the third lOOsovs out of the stake ’ Plaintiff owned a horse called Loyalty, and had entered it for this race which it had won. The sum of £1520 was paid to the plaintiff by the defendant as representing the total amount of money which the plaintiff was entitled to receive after deducting the sum of £4OO as mentioned in the said programme. No account was rendered by the defendant in pursuance of the Rules of Racing to the plaintiff shewing the total amount of moneys paid to and received by defendant on account of the stakes. The plaintiff had demanded from the defendant payment of all such stake and forfeit, and the defendant had refused to pay any further sum than that already paid. The plaintiff believed that the defendant had still in hand, or under his control, a large sum of money, received by him as and for stakes and forfeits in the said race, far exceeding the sum of £2OOO mentioned in the programme,and he submitted that under the Rules of Racing he was entitled to have an account rendered to him by the defendant, and to receive from the defendant payment of all moneys paid to the defendant for stakes and forfeits in the race, subject only to the proper deductions.

The statement of defence denied that since the first action brought against him, G. G. Stead had procured an objection to be lodged against the plaintiff’s horse by the owner of the second horse or any other person. The defendants relied on Rule 25 of the Rules of Racing, whereby the stewards were given power to make all such arrangements for a meeting as they chose. They also relied on Rules 20, 32, 126. 129, 131 (providing that all protests are to be determined by the stewards), and 137. £1520 was the total amount payable to the winner of the Challenge Stakes. The defendants held that until the objection raised by Major George had been settled by the stewards it could not be known whether Loyalty had been disqualified from running in the race or not. The stewards had a peculiar and exclusive jurisdiction to hear and determine the said objection, and the plaintiff ought not to be permitted to use the authority of the Court to restrain them. The defendants submitted that G. G. Stead was merely a stakeholder, and that the plaintiff could recover no money until the objection of Major George had been heard. The plaintiff was on the unpaid forfeit list. The affidavit of G. G. Stead said that he still believed the plaintiff’s horse was disqualified, and as treasurer of the Canterbury Jockey Club he had written and demanded a return of the stake. The plaintiff was in arrears and on the forfeit list. The race had been run under the distinct condition that all objections t should be decided by the stewards pre-

sent at the race. Loyalty had been entered by the plaintiff, who was also the owner of Launceston, Tamar and Reflection, for the said race. The objection lodged by Major George should be heard and determined by the stewards I efore the money could be paid which was in the hands of the stakeholder.

Daniel O’Brien, in his replying affidavit, recited the full facts of his connection with the case, and said the statement of defence showed that the objection had already been prejudged, and that it had been found, as a fact, that he was on the unpaid forfeit list. He submitted he was entitled to come to Court as long as the stewards had any interest in the matters involved in the objection, and that their jurisdiction was ousted from such objection. His reliance was greatly based on the circular issued by the Canterbury Jockey Club, in which it invited horseowners to compete in the Challenge Stakes, and which went on to say:—“lt will doubtless be borne in mind that the buyer becomes responsible for the forfeit, so that the race will in no way become a tax upon breeders, whilst it will undoubtedly increase the value of their stock.” These were the affidavits before the Court, and argument on technical points proceeded, from which we gather the following: — Mr Fisher said he would like His Honor to recall to mind the first action brought by O’Brien against Stead for the amount of the race. On that case investigation had proved O’Brien to be in default, and Major George, the owner of the second horse, had entered a protest. He was, of course, very properly biassed. The stewards proposed to look into the objection, but they were restrained by the order of the Court, because O’Brien had said they had an interest. The stewards were representatives of sport, and had to look to the interests of the whole of the people dealing with sport, otherwise they would not care whether or not the injunction stood. Many of these stewards practically knew nothing of the case, and were perfectly unbiassed and unprejudiced. He (Mr Fisher) thought he could show a very strong case why the injunction should be removed. In authorities (cited) on ‘ Injunctions ’ it was stated that all facts should be brought into the case when stated. An injunction could be dissolved if the Court considered that it had been improperly granted, or if misrepresentation could be shown in the affidavits. O’Brien had not disclosed to the Court his dispute about the payment.

His Honor said the Club had refused to take the man’s money under protest, and had held over him the strong screw of disqualification. Mr Fisher submitted that every fact and point now brought forward should have been shown at the time of the application for the injunction.

His Honor said these disclosures were necessary for the defence of this present case. O’Brien could not have been expected to anticipate the attitude of the other side. His contention was that all that took place after the race had no bearing on his first application. Was the contention of Mr Fisher that O’Brien should have anticipated the present application ? Mr Fisher submitted that O’Brien should, on his statement of claim, have shown all the alleged facts instead of only the one that the stewards were biassed. He further submitted that the ground of obtaining the injunction, that ‘ Mr Stead had obtained a protest against the horse,’ was totally false, so therefore the injunction should not stand. Moreover, O’Brien had misrepresented not only Mr Stead, but the stewards as well. His Honor would, of course, require more evidence that Mr Stead had procured a protest against the horse. His Honor said he was not trying the ease, but merely hearing an application in regard to an ad interim injunction. The evidence in the case would be for a jury. Mr Fisher quoted cases showing that Courts of Law had held that by the conditions under which races were run the decision of the stewards was final. The second point raised was that the plaintiff must make out such a case in support of his application for an injunction as to enable a Court of Law to see and consider all the points. O’Brien had not made out such a case. By the conditions of the programme and Rules 25, 28, 32, 136 and 131, it was clear that O’Brien had entered his horses on the basis that all protests, &c., should be decided by the stewards.

His Honor said an injunction was given to prevent an alleged wrong disposal of

the claimant’s money. He said, ‘The protest was got up against me because I sued Boyle for money; it is not a bona fide protest, and I want it stopped.’ He had a right to stop the protest if he could show it was a bogus one Mr Fisher concluded his argument by submitting that in the case of O’Brien v. Stead a protest had been lodged, the effect of staying which would be to take the whole matter out of the hands of the stewards.

Mr Stringer, on behalf of Major George, argued that Major George had taken up the position that he had lodged a protest in the following terms : — Wapiti, Epsom, Auckland, July 12, 1893. The secretary Canterbury Jockey Club. Sir.—lt having come to my notice that at the time of the race, the horse Loyalty was disqualified from competing for the First Challenge Stakes, I, as the owner of the horse The Workman, claim from you the first money, and object to your paying or having paid the same to the owner of the horse Loyalty. I understand that the owner of Loyalty was in the forfeit list at the time, and I specially base my claim to the stakes under rules 75, 78 and 80. As required by rule 125, I enclose At the same time, I request that you will be good enough to give this matter your immediate and careful consideration, with a view to paying me the stakes which, under the circumstances, I believe I fairly won. —I remain, yours faithfully, F. Nelson George.

and that he was entitled to have it considered by the special tribunal appointed. Mr Stringer argued at length in support of his contention. His Honor wanted to see the rule that made it possible for a stake to be reclaimed upon grounds that had previously been in the knowledge of the club. The horse was supposed to have been allowed to run, whereas the officials had knowledge that was sufficient to debar the horse from starting at all. Mr Stringer said another competitor had the right of insisting upon the faithful performance of every rule, and it mattered not if the officials had allowed the horse to start by negligence. All forfeits debarring horses had been posted in the club’s room according to the affidavit of the C.J.C.’s secretary, Mr Wanklyn, although O’Brien said he had not seen them.

His Honor said the plaintiff was a man anxious and willing to pay the forfeits.

Mr Stringer admitted that O’Brien had believed that he had liquidated all forfeits, and conformed to all rules, and that the stewards had believed so also.

Mr Stringer submitted that Major George should not be debarred from putting his protest before the proper tribunal. Rule 74, which the plaintiff relied on specially, provided for stakes, the conditions of which were not specified in the programme. The defendants contended that in the official programme the conditions had been specified. Mr Harper, on behalf of Mr D. O’Brien, submitted that if the plaintiff could get into Court before any decision had been given by the stewards no action could oust him. At the time of receiving the stakes no protest had been raised. Apart from questions of motives on the part of of the stewards in obtaining the protest no attempt at any decision had been made. The stewards had taken no steps to decide the protest until the law had begun to move. The whole of the facts set forth in the affidavits put in showed that the protest had been put in for the purpose of defeating O’Brien’s claim. No suggestion had been made by the Club that O’Brien was a defaulter before the running of the race. The unpaid forfeit list was only published once a year. This could be proved, and therefore O’Brien might have gone on racing all the year until the publication of the next list. All the facts showed that after the action had been started the defendants, by their actions, had shown themselves to be incompetent to judge the protest. They showed by their statements that they had prejudged the case, and that they were not a proper tribunal to take the protest before. His Honor commented on the fact that a hurried meeting of the stewards had been called to decide between the two disputants. It was a very curious coincidence—if it was a coincidence—that they should call a meeting at such an early date that all the members could not possibly have attended, for the purpose of making O’Brien pay up and withdraw his protest. Mr Harper said that all that was asked was whether the defendants had removed from the mind of the Court the inference that it was impossible for them to adjudi cate on the protest of Major George. Mr Fisher replied on the law of the case, and contended the stewards had not disclosed any particular interest. His Honor said that it was pretty strong when one of the judges to be had

advised Major George to bring a protest. After Mr Stringer had replied, His Honor iniimated that he would take time to consider his decision.

The case of O’Brien v. Stead was in the list of cases for trial at the Nisi Prius sittings of the Christchurch Supreme Court on the 21st inst. On the case being called on Mr Harper, who appeared for the plaintiff, said he desired to ask His Honor to fix a day to try the case.

Mr Fisher, for the defendant, submitted that the argument in the application for the dissolving of the interim injunction granted by the Court being before His Honor, no time could be fixed for the hearing of the main action. His Honor asked Mr Fisher whether he submitted that the question at issue would necessarily be settled by the decision in the argument on the injunction. Mr Fisher said it probably would not, but it would probably necessitate a fresh defence. Mr Harper said that they had a lot of witnesses coming from Dunedin and Auckland. His Honor : What to prove ? Mr Harper: The racing custom, your Honor, usual in these cases. As we have a number of witnesses coming from other parts of the colony we should like to be able to give them notice of the time we shall want them to be here. After some further argument Mr Harper said : We will take the fixing of the date of trial at our own risk. I now ask your Honor to fix the case for the November sitting of the Court. His Honor said that he would do so. The case would stand over till the sitting of the Court in November.

‘ Sailor, Lone Hand, and Left Bower were,’ said Corrigan to an Australasian reporter, who interviewed him the other day, ‘ the best horses I ever rode. Sailor - was as good a horse as you find now—as good as the best of them, but not quite as much to my fancy as Lone Hand and Left Bower. Lone Hand had been racing a good deal before I rode him, and he was a bit too strong for Martin Bourke. He used to run down his fences like Lady Ashton, but when it came to staying and pace at the end—well, it was a treat to ride him.* I won five out of eight races on him, and never enjoyed steeplechasing so much on any other horse.’ Lone Hand is still amongst us, and I suppose we shall see him utilised to carry a Clerk of the Course during the present racing season.

The celebrated brood mare Busybody (dam of Meddler), and Florence, have this year been sent over to Germany, to the Royal Stud at Gradwitz, on a visit to St. Gatien Florence has a foal by Satiety. At a sale of yearlings held at Newmarket, Eng., on June 29th, Ayr Laddie, by Ayrshire out of Catherine Douglas realised 710 gns., and the English sporting papers state that Australia is his destination.

Writing of the Newmarket Sales a Sportsman scribe says :—“ The Donovan — Alone colt, a superb chestnut of Hermit plus Stockwell type, rather faulty perhaps in his shoulders, but moving like a racehorse, soon set heads nodding. John Dawson and Capt. Baird contested for him till the latter retired after 1000 gs.; then Keller joined in and secured him at 1150 gs.—for Australia, it was said, but for this I will not vouch. Then came John Porter’s two yearlings which amply verified the high credentials I gave them in yesterday’s issue, the Hampton colt being bought by Mr. W. Cooper for 1250g5. A regular case of ‘ Advance Australia! ’ if the former yearling was really bought for Australia, as this one was by an Australian.” The Alone colt was undoubtelly bought for the Kirkham Stud of Mrs. J. White. The Hungarian Jockey Club intend to hold an international race at Buda Pesth for three-year-olds on the occasion of the Hungarian Millenium Fetes in 1896, the stakes to be the largest on record, viz., £25,000. The highest price paid for a yearling at the June Newmarket sales was 2,500gn5, given for a filly by Saraband from Busybody, one of the late Mr ‘ Abington’s ’ lot. There was no doubt in the minds of those who saw the race for the Epsom Derby that Isinglass was in trouble at one stage of it. Thus is his temporary trouble accounted for by the Sporting and Dramatic News: — Raeburn came round Tattenham Corner rather wide, Loates promptly snapped the inside berth, and seemed to be coming on to win, when Isinglass swerved, and Raeburn, whom he had deprived of the lead, headed him again, and the natural supposition was that the favourite would not stay home. Loates got out his whip, but before he raised it Mr McCalmont’s colt shot forward. Loates had touched Isinglass with the spur, and he, entirely unused to such persuasion, had immediately responded. What did it mean, this swerve ? Loates furnished the details of the race during that particularly interesting five minutes when the jockeys have weighed in, and when they tell us more than we have seen, or rather explain the reason of incidents we have noted and not quite understood. Isinglass, to use his jockey’s own words, “ ran as green as a two-year-old. At the turn Raeburn went wide, and I popped up inside, but my horse wouldn’t face the people. They cheered and shouted, and it upset him; he swerved and wanted to run away from them. I tried to ride him with my hands, but Raeburn got in front of me, and I had to hit him. I gave him one touch with the spur, too, then he shot ahead and went on and won.’ That is the true story of the Derby, and Watts, who was of course in the best position to see just what was going on, perfectly understood the state of affairs, and was never buoyed up by. any deceptive hopes of victory.