TayloR, Judge.
This is an action of debt on a bond. The defendant has pleaded, delivered as an escrow to be delivered to the plaintiff as his bond, if the plaintiff should1 win the race they had made. It does not appear that it v/as a play or pay race ; and it is in evidence, that where it is aot mentioned in the articles that the parties shall run or pay, if one fails to run, the other shall be entitled to the forfeiture of half, and that although the terms of the race be in writing. If the jury are of opinion that such are the rales oí racing, and that the defendant failed or refused to run, then there cannot he a recovery upon this bond, which is for a precise sum, which cannot be- diminished by the discretion of the jury but the plaintiff is entitled to recover hall the amount, as a forfeiture in another action. It is also contained in the articles that they were to ran on the 25th oí November, between the hours of 12 and 4 in the afternoon, and it is stated in evidence that Hunter’s- horse ran precisely at 4 o’clock, though one of the witnesses say about 4 minutes before 4. Where two persons agree to run or do any other act between S3 ind 4, it is evident that the act will not be effectually done unless it be done between the points of time specified: if done when the time is completed within which it was to be done, it is too late j or if done at any time after the time is completed. The jury will consider, therefore, whether he did run precisely at 4 o’clock ¡ and if so, Che verdict should be for the defendant.
The jury could not agree, and a juror-was. withdrawn