McKenzie v. Ashe, 2 N.C. 578, 1 Hayw. 578 (1797)

Sept. 1797 · North Carolina Superior Court

2 N.C. 578, 1 Hayw. 578

McKenzie v. Ashe.

The Defendant had agreed to run his mare against a horse of the Plaintiff’s and to pay one thousand dollars if lie lost the race, or to pay four hundred dollars if he failed io run at the day and place appointed. His nv.ire became by accident lame before, and continued to^be so on the day of the race, and died in two days after. Two witnesses, the only ones examined to that point, said, that such accident by the rules of racing, could not excuse.the Defendant from the forfeiture.

Per curiam,

Whatever the rules of racing decide in such a case, should be the standard of decision now ; the rule of law being, that if he is entitled to the penalty by the rules of racing, he is so by law. The jury were divided, and a juror vvithdrawn.

Note. — Upon enquiry after the trial, several persons well experienced m racing1, gave it as their decided opinion, that no accident whatever could exempt the Defendant from the forfeiture in case of failure, unless he had expressly provided against it by his agreement.

Note. — Vide McKinzie’s Admrs. v. Ashe, 2 Hay. 161. Hunter v. Ry. num, Ibid. 354.