STEWAKDS. 391 



the second horse was the winner. This was communicated 

 to the plaintiff, but no evidence was offered, and nothing 

 more was done. 



Mr. Justice Coleridge told the jury, that they must con- 

 sider, first, whether the committee had, before the com- 

 mencement of the action, decided the dispute ; secondly, 

 whether or not the jockey was a rider qualified within the 

 language of the issue ; thirdly, whether he unfairly crossed. 

 And he further told them, that if the committee had 

 decided the matter, their decision would be conclusive, but 

 that it must have been come to before action brought, as 

 to which the evidence was not satisfactory ; and, in his 

 opinion, the jockey's disqualification had not been estab- 

 lished. The jury returned a verdict for the plaintiff, and 

 the Court of Common Pleas discharged a rule for a new 

 trial (r). 



But where the judge or referee takes upon himself to when juris- 

 act as such notwithstanding the non-performance of a diction has 

 condition precedent to his jurisdiction, his decision will of "°* attached, 

 course not be final, and the party against whom his award 

 is made will be entitled to recover the amount of his deposit. 

 The case of Carr v. Martinson (s) is an example of an 

 occurrence of this nature. There the plaintiff and H. 

 agreed to run a match between their respective horses, 

 on a specified day, with a specified judge and starter. 

 The stakes were deposited with the defendant, to be paid 

 to the winner according to the decision of the judge. On 

 the day fixed the plaintiff and H. were present, but the 

 starter did not appear, and H . refused to run the race. 

 The plaintiff's horse was trotted over the course, and the 

 judge declared the plaintiff the winner, but the defendant 

 refused to hand over the stakes to him, whereupon he 

 brought an action for their recovery ; and it was held that 

 as the race was not run according to the conditions agreed 

 upon, it must be taken not to have been run at all, and 

 therefore the judge's jurisdiction never arose and his 

 decision was invalid. 



A similar point arose in Sadler v. Smith (t). In that 

 case the plaintiff and K., watermen on the Thames, agreed 

 to row a right-away sculler's race, according to the recognised 

 rules of boat-racing, the decision of the referee to be final. 



(r) Walmsley v. Matthews, 3 (t) 10 B. & S. 17 ; L. E., 5 Q. B. 



Scott, N. E. 584. 40; 39 L. J., Q. B. 17; 21 L. T., 



(s) 1 E. & B. 456 ; 28 L. J., Q. B. N. S. 802 ; 18 AY. E. 148— Ex. Ch. 

 126; 7 W. E. 293. 



