Hunter v. Jackson, 4 N.C. 250, 1 Car. L. Rep. 250 (1811)

July 1811 · Supreme Court of North Carolina

4 N.C. 250, 1 Car. L. Rep. 250

Hunter & Hunter v. Jackson & Jackson.

This was an action of covenant founded on the following articles :

“State of North-Carolina, Franklin County.

“Articles of agreement made and concluded this day by "and between Henry Hunter and Benjamin B. Hunter, of the “one part, and Alsey Jackson and William Jackson, (Miller) “witnesseth that the said Henry and Benjamin B. Hunter do “agree to run a certain horse called Scoredouble, carrying one "hundred and fifty five pounds, against a certain horse known “by the name of Brutus, carrying one hundred and forty five “pounds, which they the said Alsey and William Jackson “(Miller) do agree to run; which race shall be run at Henry “Hunter’s paths near Tarborough, one quarter of a mile, on “the first Thursday in April next, at or before four o’clock “in the afternoon, for the sum of five hundred dollars, to be “staked in bonds with approved security the said Hunters “agreeing to give said Jacksons choice of paths and twenty “five dollars as a compensation for running in the above “named paths. Which race shall be entirely void “provided either of the principals or either of the said horses should “die before the above named day; otherwise to be run “play or pay. In witness whereof we have hereunto set “our hands and seals, this first day of December 1810.

“H. HUNTER, (Seal)

“BEN. B. HUNTER, (Seal)

“Witness “ALSEY JACKSON, (Seal)

“P. C. PERSONS. “WM. JACKSON, (Seal)

The plaintiffs declare upon the following breaches:

1st. That the defendants did not stake their bond agreeable to the articles.

2d. That the plaintiffs beat the race.

The plaintiffs proved that on the day named in the articles, the ground was measured, and the weights made out: That precisely at four o’clock, one of the judges, who held the watch, proclaimed that fact, immediately upon which both the parties started: That plaintiff’s horse came out twenty feet foremost, bearing his proper weight—Start even: There was no evidence that plaintiffs offered any choice of paths to defendants, or that defendants complained of not having choice: There was no evidence that either of the parties said any thing respecting a stake-holder to deposit bonds with. There was evidence that the plaintiffs gave to one of the judges chosen by himself a paper writing of which the following is copy:

“For value received, with interest from the date hereof, “we promise to pay to Alsey Jackson or Alsey Jackson and “William Jackson (Miller) or order, five hundred dollars. “Witness our hands and seals, this 4th April, 1811.

“H. HUNTER, (Seal)

“LEWIS FORT, (Seal)

Which was delivered to his said judge, after he was chosen, the day the race was run. There was no evidence that the plaintiffs, or either of them, gave defendants any notice of the above deposit, or that the purpose thereof was explained to the depositee; but depositee conceived himself it was staked on said race. Nor was there any evidence that the plaintiffs called upon the defendants or either of them, to make a like deposit on their part; or that either of them had notice of the deposit by plaintiff’s; or that the defendants, or either of them, had ever seen the bond, or had been informed of its contents, or knew that any such was executed. The plaintiffs called a witness, who testified that he had been conversant in the rules of horse-racing, and gave it as his opinion the said deposit was a proper stake, and said his opinion was confirmed on a race with a certain Col. Bynum. The witness being pressed for time (the hour at which they were to start having nearly arrived) made a similar deposit; and that Col. Bynum, who was reputed to be experienced in the rules of racing, being unable to make up his stake, and not running with the witness, paid the money.

There was evidence that a few minutes before the hour of four, plaintiffs called upon defendants to make ready, the time was nearly out. Said witness also declared it was generally the case to choose a stake-holder.

Hall, J.

delivered the opinion of the court:

It is of no importance to enquire, whether the defendants made out their stakes, agreeably to the contract, or not, provided they lost the race. They are as much liable for one breach as two, provided the plaintiffs complied with all the requisites of the contract. But if they have omitted to comply in any one particular, they are as much disabled to recover, as the defendants to defend themselves successfully in case they had done so. Then have the plaintiffs shewn that they themselves staked agreeably to contract? I think they have not. Because, in the first place, the bond staked by them was only signed by one of them; and in the second place, if it had been signed by both, the defendants had no notice of it, to which they had a right. Suppose the plaintiffs not to have been worth $500, had they not a right to know who the security was? It was expressly stipulated that approved security should be given, which shews that the parties distrtued each others ability to pay. But again what would have been the situation of the defendants, in case they had won the race, and the plaintiffs had been insolbent, and had said nothing about the bond pretended to be staked? Or suppose by some means, in that situation, they had come to the knowledge, that such a bond was in the hands of one of the judges, could they have recovered it of him as stakeholder? He did not know himself, that it was placed in his hands for that purpose, or on what account or for whose benefit it had been delivered to him.

The case is too plain to admit of a doubt. As to what the witness said about the rules of racing, it is neither entitled to notice or respect. If such be the rules of racing, I should be sorry to consider them to be the rules of this court, being founded neither in reason or justice. Judgment therefore for defendants.