The weight to be carried by the plaintiff’s nag being a certain number of pounds, bis rider ought to have been weighed after he came through the poles. The parol testimony'olfered by the plaintiff, of an agreement .not to Weigh out, was properly rejected by the court. The plaintiff was as much bound to lork Parker’s nag, as Parker Ids; and having run hiSjiiag without being locked, and without any fraud on the part of Parker, is not entitled to recover. Therefore the rule for a new trial is made absolute.
Critcher v. Pannell, 5 N.C. 22, 1 Mur. 22 (1804)
Dec. 1804
·
Supreme Court of North Carolina
5 N.C. 22, 1 Mur. 22
James Critcher, vs. William Pannell.
The plaintiff a mV one George Parker, on the 2&th day of December, 179$, by articles under their hands and seals, *23agreed to run a horse-race, one quarter of a mile, on the first Thursday in May 1800, on Rice’s paths : Parker’s hag to *24carry one hiñidred and forty-five pounds, and Cr¡teller’s naa; one hundred and thirty pounds; for five hundred dol-0 *25larsj to be staked on the day of the race, in cash, good pro-pent or bonds ; the nags to be turned thirty feet from the _ *26• starling poles, and to turn and run the first time locked and judge the difference.
*27Tiie parties mbt at the time and place stipulated, staked their bonds in the hands of the defendant, and weighed their _ ° *28riders, according to the terms of the articles. They then attempted to start the nags, and made many attempts to do *29so without success ; Parker's nag being very restive and ungovernable, arid refusing to start from a standing posi*30tion, (as it had usually done before on like occasions) but W0l)^ have started readily if walked down the paths : *31G-ritcher’s nag was easily managed, and would have run Off without diificulty if walked down the paths witii Parker’s: *32this lie refused to do, or to make any other effort to lock. ^ie °^ler naS> further than by placing his own in a proper situation to be locked, which he frequently did; but always when the other was standing. The plaintiff in the evening run his nag over the ground without being locked; demanded the stakes, and brought this action of detinue to recover them.
On the trial the defendant offered testimony to proven that Parker used every effort in his power to lock the other nag arid start 5 that his conduct was fair, and not fraudulent ; and that his failure to lock was entirely owing to tiie restiveness of his nag. This evidence the court rejected, holding him bound to lock the other nag and rum
The defendant’s counsel then took two exceptions to the plaintiff’s right of recovery: First, that the nags had never? been locked, and that, by the terms of the articles, they were not bound to run until the nags were locked. It appearing that the plaintiff had frequently put-his horse in a situation that Parker might have locked him, if his nag had hot been restive and Unruly; and that Parker had never put his nag in a situation to be locked, the court \tfas of opinion; that Parker was bound by hisf agreement to lock the other-horse, and that the restiveness of his own was no excuse for him. Secondly, that the plaintiff had not weighed his ri-del' after he run his nag over the ground. To account for this neglect, the plaintiff offered to prove a parol agreement, made the day the race was run; to wit, that as it was a rainy day, and they carried live weight, except their saddles, the riders should not be weighed at the coming out. This evidence was rejected by the court; because it would establish, by parol testimony; a material fact, variant from *33the written obligation. The plaintiff then proposed that should be submitted .to the jury, on t, c presumption that lie had carried bis weight, as his rider and saddle had been weighed before his horse was run ovei the ground, and life had carried the rider and saddle through the poles : And to support this presumption; a Mr. Hunter, said to be skilled in horse racing, was sworn, who stated, that if there was reasonable ground to believe the p aiuti'fihs horse had carried his weight, it was sufficient.
The evidence was submitted to the. jury, and they found a verdict for the plaintiff,' The defendant’s counsel moved for a new trial, and the cause was refer.-ed to this court.