Jackson v. Anderson

3 N.C. 355 | Sup. Ct. N.C. | 1805

§>uere de hoc: For the words of the act in the first section direct a bond to be given; and in the second section, 1800, ch. 21, sec. 2, directs “ that all horse-racing contracts shall be reduced to writing, and signed by the parties thereto, at the time they. “ are made; .otherwise they shall be void, See. and no parol tes-i<- timony shall be admitted to alter or explain such contracts.3-1 Now how is the bond to be recovered on unless parol testimony b.e allowed to say it was given as an escrow to become his bond, to the obligee upon the event of his winning, the race according to the terms specified in the articles? If you will not allow the subscribing witness, to say this, then the obligee can never-recover; for he cannot shew it ever became the bond of the ob-ligor without shewing that h° won the race; and he cannot shew that without referring to the articles, and shewing that the race, was run according to them, and that he was the successful, party» The subscribing witness says, I subscribed as a witness, and saw the obligor subscribe his name 5 and I saw it delivered to B, a third person: This will not enable the plaintiff to recover, and the residue, which will, cannot be. heard. Does not such a construction. amount to a repeal of the act that allovvs of a recovery^ and specifies the means ? but by this determination the means are completely taken away. — The bond can never be established. I will here notice what appears to me to be another wrong decision upon this act; that the articles specifying the sum. were, equivalent to the bond required by the act, as in Hunter and By-num. The act cf Assembly clearly considered them as distinct 5 and their effects are certainly so. Had there been a bond in the case of Hunter and Bynum, how could there have been a recove-, xy of one. half of the sum ? Can you give the plaintiff one half in. an action of debt upon bond ? Yet by dispensing with the bond, without which, says the act, no money shall he recovered at law^ you, let in, the plaintiff to receive a different sum, and upon inferior testimony; for the bond is to be signed, sealed and, delivered and attested by one witness 5 the articles are only to be writ-* ten and signed.