The evidence of the subscribing -witness, proving the deed to be delivered to a third person, was properly received by the court; and. in all racing contracts, it is incumbent on the plaintiff to bring his case within both sections of the act of 1800 j and,.therefore, the rule for a new trial must be discharged. . ‘ • '■ "
Moore v. Parker, 5 N.C. 37, 1 Mur. 37 (1804)
Dec. 1804
·
Supreme Court of North Carolina
5 N.C. 37, 1 Mur. 37
John Moore vs. Daniel Parker.
Action of debt on a bond, plea Non ést 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 plainfiff 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 wás delivered to one Copeland, to be the deed of the defendant^ if the plaintiff *38won the race. The plaintiff could not shew articles in writing containing the terms of the race, and that he bad 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.