The evidence of the subscribing witness, proving the deed to be delivered to a third person, was properly received by the court; and that in all racing contracts, it is incumbent on the plaintiff to bring his case within both sections of the act of 1800; and, therefore, discharged the rule for a new trial.
Moore v. Parker, 1 N.C. 553, 1 Cam. & Nor. 553 (1804)
Dec. 1804
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North Carolina Court of Conference
1 N.C. 553, 1 Cam. & Nor. 553
John Moore vs. Daniel Parker.
Action of debt on a bond, plea Non est factum, payment, set off, and the act of Assembly directing the manner in which bets on horse-races shall be recovered.
The subscribing witness proved the signing and sealing of the bond, and 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 shew the bond was delivered as an escrow, without pleading that it was so delivered. The court over-ruled 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 shew articles in writing containing the terms of the race, and that he had won the race; and, therefore, the 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.