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Decisions of the Superior Courts of New South Wales, 1788-1899

Hartley v Shadforth [1833] NSWSupC 21

assumpsit - gambling - horse racing

Supreme Court of New South Wales

Forbes C.J., 21 March 1833

Source: Sydney Herald, 25 March 1833[1 ]

THURSDAY. - Before the Chief Justice, and J. E. Manning, Esquires, Assessors.

Hartley v. Shadforth. - This was an action of assumpsit to recover £100, the amount of stakes deposited in the hands of defendant as judge and stake-holder, on a race between Blacklock and Velocipede, on the Parramatta Race Course, on the 4th October, 1832.  Plea, the general issue.

On Mr. F. Stephen stating the case to the Court, Mr. Wentworth arose and endeavoured to stop the proceedings, on the ground that Mr. Shadforth was not the real defendant, having been indemnified by Mr. H. Bailey, the real defendant; it was therefore trying a feigned issue without leave of Court, which was a contempt as laid down in 2 Campbell, 408, and that the Court could not entertain an action of this kind.

The Chief Justice thought he could not do otherwise than try the case as similar cases of horse racing had been tried at Home.  The case cited by Mr. Wentworth he considered not applicable.

Mr. F. Stephen then stated the case to the Court, and called the following witnesses:-

Joseph Kenyon, clerk of the course, was present when the money was staked for a race between Blacklock and Velocipede, by Mr. Bailey and Mr. Hartley, £50 each; I was present at the race on Parramatta Fair-day; when the horses came in there was a great dispute, challenging Velocipede with jostling Blacklock; I cautioned Mr. Shadforth not to give up the stakes; Blacklock did not start a second time; Mr. Hartley sent him into Parramatta on account of jostling; I went to him by desire of Mr. Shadforth to bring his horse up again, but he refused; jostling always distances the horse; it has done so ever since I knew what horse racing was.

Cross-examined - Mr. S. made up his mind several ways, and then flinched from it; I remember Mr. S. saying to me, that in his opinion, Mr. Bailey's horse had won the race; Mr. Bailey's horse went over the course the second heat; I understood there was more than one person interested in the stake laid on Blacklock.

Re-examined - I was not present when the money was paid over to Mr. Bailey.

William Morris Harper, Esq. - No part of the stakes were mine; I have no bets, nor am interested in any way; I was present at the race between Velocipede and Blacklock; I was at Windsor when the bet was made; (agreement produced) this was signed on the occasion; at the back there is the handwriting of Mr. Bailey and Mr. Hartley; I saw the greatest part of the heat; I was on horseback, and saw as much as could be seen; I was close to the horses when they came to the distance post, ten or perhaps fifteen yards distant; when the rider of Velocipede came along side Blacklock he took hold of his right hand rein with both his hands and pulled him against Blacklock, who was pushed into the trench, along which he ran, until he came to one of  the distance posts, when he pulled up, and came in behind him; I saw this distinctly; he jostled and pushed him off the course; before this, Blacklock had been a-head; at the top of the hill he was at least five lengths a-head; he was on the inside of the course; when a horse is several lengths a-head he is allowed to choose his ground, but not when only one length- that is, if he does not interfere with the other horse; Blacklock did not alter his course; I did not observe him swerve; (protest not to pay the over put in); this is a written protest to Mr. Shadforth not to pay over the stakes after a verbal one had been given, which I gave on the course immediately after the race was run; Mr. Hartley claimed the stakes on account of the jostle, which, according to the laws of racing, is equal to being distanced; I lent Blacklock which belonged to me.

Cross-examined - I took a good deal of interest in the race; I should have liked to have seen Mr. Hartley win; I did not take more interest in the jostle than Mr. H.; all the money staked belonged to Mr. H.; I was abreast when the jostle took place; Blacklock was between me and Velocipede; I think the boy was afraid at the turning, as he had had a severe fall at that place; I obtained him because I could get none other of his weight; I have not, nor ever had any doubt of the jostle; when it took place Velocipede's head was near Blacklock's shoulder; I was on horseback, and saw distinctly what took place; Blacklock run in to the winning post after the jostle; the boy punished him, and still tried to win; the rider of Velocipede took hold of the right hand rein with both hands, and pulled him against Blacklock; a man called the Milkman rode Velocipede; Henry Rush rode Blacklock; after the race I went up the boy, and I might have said ``you've been jostled," or he might have said first he'd been jostled.

Re-examined - I spoke to the boy before he was off the horse; I might have spoken to him first.

By the Court - I think the ground on which I rode was slightly higher than the course.

Mr. H. Hall - I am in the employ of the Australian Agricultural Company; I saw the race between Velocipede and Blacklock; in coming down the hill Velocipede jostled Blacklock, and pushed him off the course; it was a short distance from the distance post; Blacklock was inside; Velocipede came in actual contact and touched him, and partly pushed him off the course; Velocipede passed in such away that Blacklock could not keep his course; I can't say it was any fault of the riders, but the horses came in contact and touched; I examined the marks made by the horses hoofs, and I found, in the small gutter off the running course, they were the tracks of Blacklock.

Cross-examined - There were several persons looking when I examined the marks; it was two or three minutes after the race; I went up the stand before I examined the tracks; I am sure the tracks in the gutter were those of Blacklock; they could be traced down the hill to that place, I can't say whose fault it was that they touched, but Velocipede had no right to touch Blacklock, as he was on his right course; Velocipede's shoulder touched that of Blacklock; I was a little a-head of them at the time; it checked Blacklock's speed materially, but Velocipede's triflingly; the latter horse being the stronger.

By the Court - There was jostling; I have no hesitation in saying so; it was not the fault of Blacklock or his rider, but it was the fault of either Velocipede or his rider; two horses touching is a jostle.

Re-examined - Blacklock came in behind; after he was pushed off the course he could not have came on again immediately, Velocipede and the post prevented him.

Mr. James Campbell - I was present at the race between Velocipede and Blacklock; when they came in I was about 100 yards behind; I went up to the stand and said the horses touched, but on mature consideration, I would not swear to it.

Henry Rush - I rode Blacklock when he ran against Velocipede; Velocipede got the start; I got the lead at Lacy's gate; I kept it until I got over the hill and round the corner; when a hundred yards or two hundred from the distance-post, the other horse came up; he pulled his horse right upon me, and ran me into the drain, while he run on the little bank inside; sometimes I was in the drain, and sometimes on a line with the post; I was obliged to pull bang up, and come right round him on the outside.

Cross-examined - He pulled his horse's head into my horse's head; he pushed me right into the drain, while he gallopped on the ridge; I was in the path when he pushed me off into the drain; he then ran on the ridge; and when I attempted to come out, my horse plunged into a line with the posts; we ran about eleven or twelve yards; I still kept going; I made a complaint when I came in, before I was weighed; Captain Harper asked me if I had not run against me; I told him I had.

Re-examined - I could not come again into the course without I ran against a post, or pulled bang up; there was a great noise when I came in; I think Captain Harper spoke to me first.

George Greigburn - I am a groom; I saw the heat between Blacklock and Velocipede; when they came round the corner, the horses got both together, and Blacklock went off the course; I can't say they touched, I was right before them.

John Price - saw the race between Blacklock and Velocipede; I was on foot; I saw Velocipede run alongside Blacklock; he got about half a neck a-head of him, and then rushed him into the trench; I was half-way between the distance and winning post.

Cross-examined - I might be 150 yards; I told Mr. Hartley's groom about it; Mr. Bailey spoke to me about it, and I told him I knew nothing about it; I did not wish my name to be brought in question; Jemmy the milkman is not my rival; I should not wish to see him disqualified; I should not get more custom is he was; we ride about the same weight; I had a quarrel once with him at Windsor; he always behaved well to me, and I to him; I cannot say Blacklock ran against Velocipede; I cannot say there was a jostle; only what I have said - Velocipede was half a neck a-head.

Re-examined - When Blacklock went into the trench, Velocipede was half a neck a-head; I understood Jemmy was disqualified for three years for jostling on the Sydney course with the same rider.

Mr. F. Stephen attorney to plaintiff, proved a letter he sent to Mr. Shadforth, and the answer.

Cross-examined - I did not dictate the answer; it was written in my office; it was before action was brought; I should not have brought it if he had said he had given judgment; I was aware at that time that Mr. Bailey had indemnified him; he always told me that he had never given any decision.

Re-examined - Mr. Shadforth told me that Mr. Wentworth drew up the indemnity; and under his advice he gave up the money; if he had told me he had given judgment, I should not have brought the action; certainly not.  The letter and answer were both read; the former was an enquiry from Mr. F. Stephen to H. Shadforth, to know if he had given any judgment, and if not, how came he to surrender the stakes, as they intended to resort to legal proceedings to recover them.  The answer stated that, he had never given any judgment; and that he had only given up the stakes on an indemnity of Messrs. Lawson and Bailey.  The protest not to pay over the stakes having been read, plaintiff closed his case.

Mr. Wentworth addressed the Court for the defendant, and called the following witnesses:-

John Thorn - I saw the race between Blacklock and Velocipede; I saw them as they were coming in; Blacklock was a-head when they turned the corner; Velocipede passed; I saw no jostling; I was right in front; if there had been any jostling I must have seen it; Velocipede came in easy, without whip or spur; Blacklock's rider was flogging him; Blacklock was never off the course; tracks were made the day before by a colt breaking off the course; Velocipede had passed before Blacklock came to that place.

Cross-examined - I did not go to see the tracks at the time the people were there; I swear that Velocipede was a-head of Blacklock at the place where the tracks were; Blacklock was not off his track; he could not be off without my seeing him; he was not off the course at the time they turned the corner; I never saw Velocipede nearer Blacklock than a yard; he could not have been hearer without my seeing it; Velocipede never touched Blacklock; I thought Velocipede would have bolted off the course, and I was watching him turn the corner; I was on the course on duty.

Re-examined - I was talking to Mr. Shadforth the day after; he decided that Bailey had won, and he had given up the money.

Cross-examined - He said he gave up the money, and was perfectly satisfied that Bailey had won.

Mr. James Dixon - I saw the race between Velocipede and Blacklock; I was on horseback, the inner side of the course; when the horses passed one another, I was within 40 yards of them; the horses were three or four hundred yards from the winning-post when the push took place; Blacklock did not run off the course, as I saw; I saw no jostling take place; it was fair and as easy won a race as ever I saw; Blacklock was knocked up.

Cross-examined - I can't say how near the horses passed each other; Velocipede was two or three lengths a-head before he took the inside of the course; the horses might have touched when they passed, but I did not see it; the horses passed so quick there was no time for a jostle; Blacklock almost stood still; Blacklock was fifteen yards behind when Velocipede came up to the winning-post; I was standing still when the horses passed.

John Gorrick - I saw the race between Blacklock and Velocipede; I saw them make the push at coming in, about two or three hundred yards from the winning post; I was on horseback about 40 yards distant; they did not jostle; neither horses or riders touched; Blacklock appeared distressed; the rider was punishing him; Blacklock was on the path; I swear positively he was not pushed off that, or run off it; I was looking particularly at the horses; Velocipede was about four rod a-head when he got in; I never saw a fairer race in my life.

Cross-examined - I was in front, about forty yards distant; the horses were about a yard distant when the push was made, I think the rider of Blacklock was punishing him at the time they passed; I bet one pound on Mr. Bailey's horse at starting, but I told my friend of the qualities of Mr. B.'s horse, and I drew the bet; I won ten shillings on Velocipede.

Re-examined - I have rode my own horses, and I understand racing very well.

Mr. T. Barker - I saw the race between Blacklock and Velocipede; when the horses passed, I was perhaps, 300 yards distant; I was looking at them; I saw no jostling; one horse might have been run off the course, without my seeing it; Velocipede passed very quick; they did not appear to be any struggling; the horses did not hang together; I was close to Mr. Harper when he rode up to the boy; Mr. H. held up his whip, and said ``you've been jostled;" the boy looked at him with surprise, but made no answer; and I remarked it to a friend; Mr. H. appeared excited, and in a violent passion; previous to this, he held his whip in a threatening manner; I do not think there was any jostling.

Cross-examined - I don't know that a bolter bolts when he finds himself beat; the conversation between Mr. H. and the boy took place as the latter was going to be weighed; the only voice I heard was Mr. Harper's.

Captain Wright, I saw the race between Velocipede and Blacklock; I heard that Mr. Shadforth was the judge; on the course, immediately after the heat, Mr. Shadforth said, he thought decidedly, Velocipede had won; a jostle was alleged on one side, and denied on the other; I was looking at the horses when the push was made; in my opinion there was no jostle; there was no occasion for it; Velocipede decidedly had the speed of the latter horse: Blacklock was being flogged - the other had no occasion for it; I did not see Blacklock run off the course; if he had, I think I should have seen it.

Cross-examined - My opinion was, that Mr. Shadforth considered Velocipede had won, but that he hesitated about giving up the money, on account of the dispute; a jostle was possible, but I think there was none.

D. C. G. Bowerman - I saw the race between Blacklock and Velocipede; Mr. Shadforth was the judge; after the horses passed the winning post, Mr. Harper said there had been a jostle; there was an enquiry about it, and Mr. Shadforth went to see to see where the jostle was said to have taken place; I did not go; Mr. Shadforth asked me about the jostle; I told him I thought there was none, on account of the speed of Velocipede; I saw no jostle; I understood from Mr. Shadforth that he decided in favour of Velocipede.

Cross-examined - It was some time after the race took place that I talked with Mr. Shadforth; evidence was brought before Mr. S. immediately after the race; he told me he had taken, or was to take, and indemnity from Mr. Bailey, in case an action was brought against him; after the enquiry about the jostle, he called the horses again to start.

Jemmy the Milkman - I rode Velocipede against Blacklock; my horse had the legs entirely of the other; I kept behind till I turned the corner, as he used to bolt there; after turning I made play; in passing Blacklock I did not go within a yard of him; I had no occasion so to do; I heard Mr. Bailey say he would run the same over again for the same sum, but they did not fancy it.

Cross-examined - Any one that rode my horse might have run the race; it was no credit to me; I was never disqualified from riding for jostling; I was suspended one day, and restored the next; the day after this match was run, I was told I was not allowed to ride, for winning the race I suppose; Captain Harper challenged me with jostling, and threatened to horsewhip me; I don't remember I said to him I would have done the same for him if he had paid me as well; I never touched the other horse; I jumped past the other horse like a shot; he was dead beat.

Re-examined - If I had said to Captain H. I would have done the same for him, I meant to have done my best; the second heat I cantered over the course; Mr. Bailey paid me about 20 guineas for the two races I won for him; Mr. Harper offered me a sovereign for a race I rode for him; at first I refused it as not being half enough, and then I drank it.

Mr. E. J. H. Knapp - I arrived on the Parramatta course as they were taking Blacklock away; I heard a great deal of dispute about jostling; Mr. Shadforth said to Mr. Bailey he might have the money in his (Mr. B.'s) hands, for he would give it to him when he got into town.

Cross-examined - I don't know what took place on the afternoon of that day; I was standing near the stand; I saw Mr. Bailey's horse go round the second time; it was I think after this that Mr. Shadforth spoke to Mr. Bailey.

Mr. Foster having replied at considerable length, the learned Judge summed up, leaving the case to the Assessors on two points.  First, had Mr. Shadforth been appointed judge of the race, so as to make his decision binding on all parties, and did he give a decision; and secondly, if he was not so appointed, had any jostling taken place.  The Assessors found a verdict for defendant.

Mr. F. Stephen and Mr. Foster for plaintiff, and Messrs. Wentworth and C. Moore for defendant.

 

Notes

[1 ] See also Sydney Gazette, 23 March 1833.

Published by the Division of Law, Macquarie University