DISTRICT COURT SESSION.

Wairarapa Age, Volume XXXI, Issue 9095, 22 May 1908, Page 5

DISTRICT COURT SESSION.

CLAIM FOR A RACEHORSE.

JUDGMENT FOR DEFENDANT.

The quarterly session of the Wairarapa District Court opened yesterday, before His Honor District Judge Haselden.

The first case taken was a claim by Albert Smith, executor in the estate of the late T. F. Smith, against James Cress, hotelkeeper, for the return of the racehorse Gaelic, or in the alternative the sum of £3O value of the horse and £IOO for alleged illegal detention. Mr B. J. Dolan appeared for plaintiff, and Mr C. A. Pownall for defendant. The jury was as follows:—A. A. Cameron (foreman), C. Brunton, G. A. Dawson and F. R. Davidson. Mr Dolan, in his opening address, said the claim was for detinue, or alternatively £3OO, the value of the horse and £IOO for illegal detention. The defence was that defendant was a partner in the horse. Smith paid £235 for the horse from 11. Nee, for which a receipt was found among deceased's papers. Defendant had nothing to show for the alleged payment of a half-share in the horse. The horse had been entered for races at Pahiatua in' Smith's name alone, and it was the duty of co-owners of a racehorse to notify the authorities. Defendant had a horse of his own running at Pahiatua, and his horse and the horse Gaelic were not bracketed. There would be evidence called to show that defendant had said on scratching Gaelic at Pahiatua that "the owner was dead." On January 29th a letter was sent to the rac'ng authorities notifying that a joint interest had been signed, but it would be contended by counsel that this was void, that Smith was almost deranged about this time. Albert Felix Smith, shepherd, residing at Masterton, executor under the will of his father, the late T. F. Smith, said he had found the receipt produced (for the purchase of the horfe) among his father's papers, the receipt being dated January, 1908. Witness' first conversation with defendant about the ,horse Gaelic was on January 31st, the day following th 6 decease of his father. Cress, who; said he owned a halfshare in the horse, saw witness two or three times afterwards, and asked what witness was going to do about the horse, witness replying that he was not going to do anything. About July last witness' father went up to I.evin, witness only seeing him about five times between then and his death. Four times out of those he was very drunk and the other time also he did not know his mind. Three weeks elapsed between the time witness last saw his father before he died.

By Mr Pownall: Defendant and his father were friends for many years. Witness admitted that his father had been drinking rather heavily for a long time, and in spite of that made a lot of money. Defendant offered to let witness half the horse on payment of his half-share, cr vice versa.

Matilda Sophie Smith, wife of the lato T. F. Smith deceased, deposed to leaving her husband in May, 1807, he giving her £I,OOO. She stayed a month in Masterton after receiving this amount, during which time Smith was drinking heavily. After she removed to Levin witness , saw het husband four or five time 3 there, when he was very shaky with drink. On the Saturday preceding his death witness was sent a wire while at Wellington to say he was ill. She did not receive this until Monday, and on comirg to Masterton she stayed at the Empire Hotel. Witness found the documents produced (a receipt and chequo book) among deceased's papers. Witness asked defendant if he had a share in the horse, and he said he had, and on witness asking if He had anything to show it he replied "No." Had not spoken to defendant since. Defendant told witness that Smith had not been drinking, but had influenza very bad. • ><

By MrPownall: Smith had been drinking fairly heavily during the ten years prior to his death, conducting his business fairly well during that time. He was not a good writer. The butt of Smith's cheque-book (produced) contained only two in deceased's handwriting. When Smith was very drunk he usually got someone else to fill in the cheques. Recog nised the handwriting of Mr Nee's in the butt produced. George L. H. Drew, Secretary of Pahiatua Racing Club, »worn, said he received the nomination of the horse Gaelic on January 4th from R. Knox, trainer, i-, the name of H. Nee. The horse was to run in four races, two the first and two the second day. On January 9th witness received a letter from Mr Nee stating that he had sold the horse to Mr T. F. Smith. On the 29th a memo, was received from defendant scratching the horse for the first race of the first day. Defendant had no horse running in the first race, but had a horse named San Julie running in the other event, the Pahiatua Cup. Witness received no notice of any dual ownership. On the evening of the first day's racing R. Knox acrepte'd for Gaelic for two races, Nos. 5 and 8. San Julie accepted for No. son that day also. Defendant scratched Gaelic on the second day of the races, witness hearing him remark to someone in the lobby that the reason was that the owner was dead. It was a rule of racing that all horses running in one race owned by one person must be brackett'ed.

By Mr Pownall: It was, he believed, a practice for owners having j:art shares in horses to try and avoid having their horses bracketted by entering them in different owners' names.

Dr. H. S. KosS' said ho attended Smith during his last illness. Was called in to see him un January 22nd, at trie Empire Hotel. Smith was very incoherent, and was probably suffering from the effects nf drink —a Ion? indulgence, apparently. He was certainly not in a position to transact business He wa3 taken to a private nursing home for a few hours pending his admission to the hosptial. There he was very violent, and was eventually removed to the hospital. Coma supervened, and Smith died a few days afterwards. Defendant called witness in.

James Small, labourer, of Masterton, said that on one occasion he was engaged to go up to Knox's stable and get the horse, but Knox said there was a dispute between Smith

and defendant as to the ownership of | the horse, and he would not give it up until this was settled. James Bell, labourer, stated that he was asked to go to. the hospital on January 29th to look after Smith. Witness thought SmiHi had the delirium tremens when he saw him at the? Empire Hotel the night previous. Defendant guaranteed witness his expenses* and explained that Smith had been drinking heavily for some time. Defendant, on paying witness for his work, remarked something about paying Smith for a share in the horse Gaelic, giving Smith the money over the bar, and getting no receipt. This closed plaintiff's case. Mr Pownall, in his opening address, said that he proposed to rely chiefly on the evidence of independent witnesses, who would give Smith's version of the ownership of the horse prior to his death. Collateral evidence would show that the horse had been registered as owned by Smith and defendant, and that the horse had been purchased by the two. Evidence would also show that Smith was in the habit of making very large deals when he was alleged to be drinking heavily. James Cress, defendant, hotelkeeper. said hj and Smith had been friends for about 25 years. There was no doubt Smith drank heavily, and no effort of witness could prevent him. When refused drink at witness' hotel he would stay away from the place all day. The horse Gaelic was under offer to witness for £2OO, and he and Smith conversed one day about purchasing it jointly at that price. Later that day Smith purchased the horse for £235, witness remonstrating with him for paying so much. Both witness and Smith went out together then to take possession of the horse. It was eventually decided to leave the horse where it was meanwhile —at Knox's stable. On the 18th January witness paid Smith £ll7 103 on account of his share of the horse, Smith saying he would fix up about a receipt later on. Witness paid £ls or £16 texpenses in connection with Gaelic's running at Pahiatua. The reason the horse was not coupled with San Julie at Pahiatua was because Nee had notified the secretary at Pahiatua that ho had sold the horse to Smith.

By Mr Dolan: The value of Gaelic now was only about £l5O. Smith stayed several months at the Empire Hotel. Witness rendered an account to the executor of Smith's estate for Smith's board for several months. Did not deduct this amount from witness' share of the horse because he did not mix his private racing accounts with his hotel account. Paid Smith the money in £IC notes in the commercial room of the hotel, Smith being apparently sober;- on the next day being not "too good." Could not account for what Smith did with the money. There was no one present in the room when Smith was paid the £ll7 10s. By Mr Pownall: Smith was rather illiterate, and that was why witness did. not trouble about a receipt immediately. Neither witness nor his wife were, expert at making out receipts. Smith and witness had perfecycunficlence in one another. Stephen Topp, wool-buyer, stated that in January ho was stopping at the Empire Hotel. About the 10th of that month witness went out with Smith and defendant to R. Knox's stables for a drive, witness understanding he wa3 to see a horse purchased by them. Smith, on the return journey, said that he and defendant had purchased the horse. Defendant also stated that he had arranged with Knox to train the horse for £2 per week. Witness had known defendant for thirty years. Smith was quite sober. Henry Nee, blacksmith, who sold' the horse to Smith, deposed that the latter was perfectly sober at the time of the transaction. Edgar G. Harris, sheepfarmer, who sold Smith a farm at Martinborough, said Smith was sober right through the transaction. Heard Smit|i %ay he was partner in Gaelic with defendant. H. W. Pownall, law clerk, J. Savage, farmer, and C. R. S. McDoneil, gave evidence as to a verbal declaration of partnership by Smith. R. Knox, trainer said he understood thiit he was receiving the horse to train for defendant and Smith jointly. This concluded the case, and after the address of counsel and His Honour, who said the chief issue was whether defendant had paid the half share as he alleged, the jury retired at 3.5 p.m., returning an hour later with a verdict for defendant. Mr Pownall moved for judgment, which wa3 formally given, costs to be agreed upon. CLAIM FOR ALLEGED SLANDER. Alfred Isaac Geange sued F. H. Jones, of Te Parse, for £IOO damages for alleged slander. Mr Pownall, for plaintiff, wished to maice an important addition to the statement of claim, and as Mr Rollings, for defendant, objected, and His Honour upheld the objection, Mr Pownall elected to take a nonsuit, with the object of taking fresh proceedings at next sitting of the Court. Costs amounting to £7 4s were granted defendant.

The Court then adjourned until today.