5 N.C. 37 | N.C. | 1804
The subscribing witness proved the signing and sealing of the bond; that it was given for money won on a horse race, to wit, the best two in three heats, one mile. The defendant's counsel then asked if the bond was delivered by the defendant to the plaintiff, or to any other person, upon conditions. To this question the counsel for the plaintiff objected, on the ground that it was intended to show the bond was delivered as an escrow, without pleading that it was so delivered. The court overruled the objection, and the witness answered that the bond was delivered to one Copeland, to be the deed of the defendant if the plaintiff won the race. The plaintiff could not show articles in writing containing the terms of the race, and that he had won the race; and, therefore, the (38) defendant had a verdict.
It was, in the course of the trial, contended by the plaintiff's counsel that this case being within the first section of the act of Assembly, and the race a course race, within the proviso of the act, he was entitled to a verdict. The evidence of the subscribing witness, proving the deed to be delivered to a third person, was properly received by the court; and in all racing contracts it is incumbent on the plaintiff to bring his case within both sections of the act of 1800; and, therefore, the rule for a new trial must be discharged.