Hunter v. Jackson , 1 N.C. 250 ( 1811 )

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.