Meaning of term “winner.”
II. With respect to the term “winner,” some rather curious points have been decided. In Crofton v. Colgan,[[198]] the parties subscribed £3 each in respect of their stakes, the stewards of the race subscribing £30. There were two prizes to be awarded. It was contended that this did not come within the proviso as a prize to be awarded to the winner, on the ground that the horse that came in second could not be considered a “winner,” and, therefore, as the whole sum was not to be awarded to the winner the statute did not apply. |2nd horse may be “winner.”| But the Court held (1) that the term “winner” might apply to a second horse as well as to a first;[[199]] and (2) that, apart from that objection, the mere fact that part of the stakes were not to go to the winner would not take the case out of the statute.
Another point arose in Batson v. Newson,[[200]] where a man called Hawkins wagered with the plaintiff, that his, Hawkins’, horse would trot eighteen miles in one hour. Hawkins and plaintiff deposited £50 each with defendant as stakeholder to abide the event. The referee decided in Hawkins’ favour, but plaintiff, disputing the decision, gave notice to defendant to pay him back his stakes. Defendant disregarded the notice, and paid the whole to Hawkins. Plaintiff sued to recover his deposit. |There must be a “loser.”| Held, that the agreement was a mere wager; there could be no winner in such a case as only one person was to do anything. In such a case there could be no “loser,” and without a loser there can be no winner. It will be remembered that in Applegarth v. Colley the same view was taken as to the meaning of the term “winner of £10” in the Statute of Anne, and the Court there held that a man could not be said to be a winner of £10 within the statute, unless there were a corresponding loser of the same sum. |Winner must be a competitor in the race, &c.| It would seem, too, that a person cannot be called a winner unless he either take some part himself in a competition or be the owner of an animal engaged therein. Thus, in Irvine v. Osborne[[201]] the plaintiff and defendants simply nominated the winner of a race, the person who nominated the successful horse to have the stakes. Plaintiff nominated a horse not belonging to himself. Held, that he could not be a winner of the race, as “the contract depended on some accidental circumstance, not on the winning of a race.”
Breeders’ stakes.
A case that seems to fall within this rule is that of breeders’ stakes, where a certain sum is, by the conditions of the race, to be awarded to the breeder of the winner. It would seem according to the above case that not being the owner of the animal winning, the breeder could not recover under this proviso of the section.
Disputes as to the winner.
It is obvious that any person suing to recover stakes as winner has cast upon him the burthen of proving himself to be such. The determination of such a question will generally depend upon agreement or special conditions by which competitors agree to be bound. Thus, horse-races are generally run either subject to the rules of the Jockey Club, or subject to specially advertised regulations. However, it may be taken that the winner is declared by the judge, all further questions or objections—as to, for instance, qualification—being decided by the stewards.
The judge.
With respect to the authority of the judge to declare the winner, the conditions upon which it is exercisable must be strictly observed, and the same in the case of the arbitrators or umpires of other kinds of races. In the head note to Carr v. Martinson[[202]] it is stated the power of the judge of a horse-race to award the stakes to a winner does not arise until the race has been run! This extraordinary point arose in the following way: the parties agreed on a race between their respective horses, naming both a starter and a judge, and fixing a particular hour on a certain day. The stakes were deposited with the defendant, to be handed over to the winner according to the decision of the judge. The parties made their appearance, but the starter did not turn up. One of the parties refused to run and the plaintiff walked over the course and was declared by the judge to be the winner. But the Court held that the presence of the starter was, by the agreement, a condition precedent to the race, and so to the judge’s authority. There had been no starter, and so no race; consequently, the judge’s authority to declare the plaintiff winner did not arise. The other point decided in this case as to recovering stakes has been noticed above.
N.B.—This case by no means decides that an umpire never has power to award the stakes to a person whose horse has simply walked over the course.