THE HORSE-RACING CASE

Waikato Times, Volume XII, Issue 989, 24 October 1878, Page 2

THE HORSE-RACING CASE

OWKN M'GEB V. HXAUGIIMN, RUS3ELL, AKD I OTHERS. Tuts action arose out of the disqualification of a racchorje belonging to plaintiff by the stewards of the Auckland Racing Club, on the 23rd 'of April last, a*t I Ellcrjlie. 'Iherc was a special jury, consisting of Messrs James Labor (foreman), Charles Alexander, Wm. Gorrie, J. Manning, P. Krodie, E. Isaacs, Geo. Lavers, Wm. Rail, Jobn Dickey, Henry Allright, J. D.Jackson, and Henry N. Garland. The damages were laid afc £2,000. Messrs Rees and Lusk appeared for the plaintiff, and Messrs Whitaker, Hesketh, and Tyler for the defence. 'iherc were twenty-one issues, which caused Hi* Honor to say that a great number of them might be omitted, as the proving so many he considered would be a waste of time. Mr Hesketh replied that they were considered nccessary in the present case. His Honor said thafc many of them j could not bc denied by defendants ; still, he would say no moro upon the matter. The pleas put in by defendants were a general denial. There were twenty issues for the jury, five of which set out the facts, and laid the defamation ia the publication of the resolution in thc « New Zealand Herald,' five of them alleged the disqualitiaction of thc plaintiff (himself for two years, his horse Falcon for ever, and his rider for a year)— forwarded to the Canterbury Club, — and five alleged the same in respect of the Jockey Club at Dunedm. The issues I were based on the facts set out in the pleadings. Mr Lusk opened the pleadings as follows : — The action was brought against Messrs W. McLaughlin, J. Russell, Jos. Banks, and S. Morrin, as stewards of the Auckland Racing Club. The declaration set out that, at the time of the alleged grievances, the plaintiff was a faithful subject of thc realm ; that he never had been guilty of, and had never, up to that time, been suspected of any charges such as those whicli the defendants made against him ; that thrf plaintiff carried on his business of breeder and trainer of horses; that, on the 23rd of April, a certain race was run at Ellerslie between certain hovses— one called Belle of the Isle and the other called Falcon (the latter the property of the plaintiff)— for a subscription of £30; that Falcon was declared to bc Iln winner ; that this declaration was found to be a mistake, and the race had to be " run over again," Falcon again winning ; that thc defendants, in their capacity of stewards of the Racing Club, disqualified the plaintiff from running his horses for two years, tho horse Falcon was disqualified for ever, thereby maliciously intending to injure the plaintiff in his good name and business ; that, in consequence of the action taken by the defendants, he was unable to run his horses for prizes in Auckland, Napier, Wanganui, Christchurch, Dunedin, and elsewhere. To the declaration, tho defendants pleaded separately. (1* Each denied all the material allegations. (2) That the matters mentioned in declaration (relating to the resolution of the Auckland Racing Club) were true in substance and in fact. (This was a plea of justification.) Mr Rees opened the case to the jury. The following evidence was adduced :— Owen Curran McGee, examined by Mr Rees, said: I am a farmer and studowner. I have carried on the business for twenty-four years. The defendants are members and sts wards of the Auckland Racing Club. I have forty-two horses altogether. I usually train about nine horses, and run five or six. I go round thc colony to run my horses wherever opportunity offers. My horse Falcon was entered for the Auckland races, in April last— Easter Monday and Tuesday. I had four others there besides Falcon. Falcon ran the first day, in the "Novel Handicap." He won. I had also a mare named Elsa in the Easter Handicap. She also won. The consequence of her winning was thafc the handicappers, Messrs Tercival, Marks, and another, put 221bs extra upon lier for thc next day. This extra weight deprived her of any possibility of a show. She could not win under it, except the other horses met with an accident. The mare Avon the day beforo ■• within herBelf," tbat is, she had plenty of ground to spare. She was ridden by witness's son, a lad about fourteen years of age. In consequence of what happened, witness gave instructions not to win by so much spare ground — fche jockey was to win, but not by so much distance. I did not give instructions to lose the race. The horse Falcon ran the next day in the Selling Raoe. His Honor: Selling Race-' We had better understand exactly what is meaht by the term. Mr Tyler : Th-3 same term iu matters of this kind may mean several things. We also say that this was a " selling race" — a good many people were sold by ifc. Witness: Not by me. The horse won. Heard some gentlemen call out, " It's a dead, heat, flluGee." Witness replied, "ls ifc so ; if so, what do those numbers mean Y' It was Mr S. Morrin that said the race must be run over again. Mr Kavanagh, the owner of the other horse, Belle of the Isle, did not want to run over again. He proposed to divide the stakes. The race was run over again, and Falcon won. Two or three days afterwards witness received a cheque for his sales and winnings. Up to tliis time there was no insinuation thafc witness was aware of, that he had besn guilty of dishonest practices. Received a letter from William Percival, the secretary of the Auckland Racing Club. The letter requested witness to attend a meeting of the Auckland Racing Club, at 2 o'clock on Friday, the 26th April, but witness did not rccoive it until between five and six o'clock of thit day. The firsfc intimation witness had of his disqualification was by the publication of the resolution passed afc the meeting of the Auckland Racing Club on Friday. Witness came to town on Monday, and saw Mr »S. Morrin, and demanded a rehearing afc a meeting to be held on the following Friday. Witness said that unless he had a re-hearing, he would bring the matter before a Court of law, where the doors would bo open, and where he and others would be present. At the opening of tho meeting for the re-hear-ing, the witness insisted, before he would sit amongst them (meaning tho members of the Auckland Racing Club), "the doors shoulcl bo kopt open, and the Press admitted." They closed the doors, and a very intemperate debate seemed to arise amongst them. After some time, they came out, and agreed that the doors should bc opened, and the Press admitted. Upon thafc, witness consented to taking his scat with them. He demanded the grounds upon whieh himself, his horse, and rider had been disqualified. They replied, "You are disqualified ; what evidence have you ? You aro disqualified for ' pulling ' Falcon." [The witness here gave a long and somewhat desultory account of -what took place at the into ting]. Witness told thoso present the instructions ho gave the rider — they were the usual instructions given by owners to riders— the boy was " to hold the horse well in hand till he came to the ontting." The boy iras then to go up aud " feel his cattle," that was, to try how he could go ,

with the other horses: when he got t the distance he was " to come,"— which meant he was to overtake the first liorse. 1 old tho boy that if he won too easily', the haudicappors would put him out of every race they could. They had handicapped his other horses so as to put them practically out of tbe races for which they would havo to run. The names of those horses were Perfume, Luna, Elsa, and May Moon. Witness tola the meeting that he had no bets against Falcon ; that ho never bet against his horses. He asked the stewards to point out thc rule upon which they grounded their decision. They did not shew him the rule. Upon that they told him they would "dispense with his society for a time." Witness estimated his winnings at about £1450 a-year (last year), the yea* before ho won £850. Witness had received intimation that the resolution of the Auckland Racing Club had been adopted by the Dunedin Club and the Canterburv Club. J The Avitness, in continuation, said that his horses had been depreciated hi value to the extent of £1,200. William Percival, secretary of the Auckland Racing Club, deposed to the same facts in connection with the holdinjr the races at Ellerslie in April last, and also the conduct of the raco meeting, and races under the management of the stewards. The witness described the action which he took officially (according to instructions of the stewards). There was a meeting held on the racecourse, and evidence was taken. The grounds upon which the enquiry was instituted by the stewards were several complaints to the effect that the horse was distinctly pulled by his rider, and witnesses were examined to prove the fact's. The witnesses were Mr Marks, Captain Eraser, and Mr Carpenter (of Waikato), Witness called a meeting of the Club for the 2(ithof April, and invited the plaintiff to attend ; but he did not attend. Mr McGee subsequently made a request that a meeting be convened to enable the stewards to re-consider their decision. A meeting, in accordance with that request, was convened for the 3rd of May. Mr McGeo came to that meeting. He asked that " a member of the Press " might be admitted. The meeting conferred together upon this, and the "member of the Press" was allowed to remain. Mr McGee then made a long statement to the effect that he did not want Falcon to be overweighted as his ware Elsa had been ; that he told the boy to pull Falcon only so that he should not win by any great length, fcr if he did Falcon wonld be weighted " for an age and a day." Mr McGee asserted that he was innocent, that he had no connection with the bookmakers, and that the public was not damaged in any way. The witness said he forwarded thc resolutions passed by the Racing Club to Mr Sydney James (Dunedin Jockey Club), to Mr Digby (Secretary of the Canterbury Jockey Club), to secretaries of clubs at Wellington, Gamaru, and Hawke's Bay, New Plymouth, Waikato, and Tauranga. Cross-examined by Mr Whitaker : Falcon carried Bst 21bs on the first day, and Belle of the Isle 7st 71bs. . Mr Whitaker : No w give us the weights for the next day. Mr Rees objected. Mr Whitaker: The witness has stated that the defendants overweighted his horses, and that circumstance was ascribed to the defendants as evidence of malice. The plaintiff gave that as a reason for his instructions to the boy not to win by too much. If it should appear that Falcon carried considerably less the second day, that could not be the reason. His Honor : I think the question may be asked, as shewing that the defendants were not actuated by malice in the way alleged. Witness: Falcon carried 7st Dibs the second day and Belle of the Isle 7sfc 71ba. He carried 131bs more than Belle of the Isle tho day before. Mr Whitaker: Did you receive any instructions from the stewards to give this resolution to the reporters of the ' Herald,' or to any person whatever, except to the persons to whom, in the body of the resolution you were instructed to forward it ? Witness : No. I did it on my own responsibility. I had no instructions for it. i Robert Graham, who acted as judge at the race, was called to prove the mistake iu the declaration that Falcon had won the first time. He announced all through that it was a " dead heal." Mr Whitaker : I would ask your Honor to take » note of the fact that the stewards of this club had nothing whatever to do with the publication of this resolution in the 'Herald,' or gave any authority whatever for any publication. The question as to the right of the club taking such a resolution, and communicating the" same to the other clubs, turns upon a wholly different consideration. • Mr Tyler : I would ask the same thing in respect of my client. John McGee, sou of tho plaintiff, said he was at the Auckland races last april. He rode Falcon. [The witness proceeded to state what took place upon that occassion.*] Mr Whitaker objected to the evidence offered, upon fche ground that, as the plaintiff submitted himself to the judgment of a particular tribunal— which tribunal adjudicated by the assent of all concerned, — tho decision of that tribunal was -tinal. His Honor: The question here is, whether by thc action the stewards took they promulgated a libel upon the defendant. This Court would uot review the decision of a racing club, though they found that the matter of wliich they stood charged was true, for the plaintiff had submitted to their jurisdiction. But they went further than to find the matter in issue between them and tho plaintiff. They commuuieated their decision — in a formal manner under directions, in the body of tlieir resolution itself— to other people, and in doing so they did an act which implied that the plaintiff had been guilty of dishonest practices. If there were power in these rules given to communicate the effect of their decision— the disqualification of the plaintiff, liis hor.se and its rider, there would be no difficulty. As it is, I think the question may be put to the witness. Mr Rees repeated his last question to the Avitness, '• AVhy did you not push the horso to its utmost speed ?" Witness: because my orders Avere to hold him in hand till I came to the distance ; and that I was to win by as little as I could. The rest of this witness's evidence was in effect the same as that giveu by the plaintiff. A number of other witnesses were called to prove that plaintiff himself had desired an open publication of tho enquiry and its results— a point which was strongly relied upon by the counsel for he defence. His Honor summed up the evidence. He said the matters tried by the Auckland Racing Club Avere tried under a jurisdiction, and in accordance with certain regulations to Avhich plaintiff Avas an assenting party. The Court or jury would not try these inatters, or review the decision of the stewards. The important issues were the publication of fche decision in the ' New Zealand Herald,' and to the Canterbury and Dniiodiu Jockey Clubs. Tho Court had fche duty imposed upon it of saying Avhother that publication in each caso was capable of tho construction put upon it. He Avould direct thc jury that it was capable of such construction, but the jury Avould apply the evidence in cuustruing it, as ifc Avas for fchem to say whether it bore Bin-h construction or aot.

As to thc question, whether the publication was in tho nature of a privileged communication, the duty of ruling that point was also east upon tlie Court? Tho Court held that ifc was a communication of that nature, and if his direction in this respect Avere wrong, ifc could be sot right. The publication in the 'New Zealand Herald ' might be taken to be a matter of general Interest ; thc publication to tbe kindred clubs would probably be based on a community of interest between those hodies. The duty was cast upon the jury of Haying whether the evidence bore out that view in this particular ease. If the jury found there Avas malice on the part of tho defendants, that wonld destroy their decision, and it would be as if no decision had been given. The jury retired at 5.15 to consider their verdict. They returned inf*> Co urt to ask direction as to ono »r tv,*. of the issues. At halt-past six o'clock, they came into Court wife a verdict for the defendants on all the issues— damages, nil. They found the issues of fact upon the several issues of publication, but said that " the steAvards decided the matters submitted to them without malice, and that the publications were made, but not maliciously." His Honor, on the application of Mr Whitaker, certified for a special jury.