Hunter v. . Stroud , 3 N.C. 403 ( 1806 )

This is an action of debt on a bond which the defendant has pleaded he deposited as an escrow to be delivered to the plaintiff as his bond, if the plaintiff should win the race they had made. It does not appear that it was a "play or pay" race; and it is in evidence that where it is not mentioned in the articles that the parties shall run or pay, if one fails to run, the other shall be entitled to the forefeiture of half, and that although the terms of the race be in writing. If the jury are of opinion that such are the rules of racing, and that the defendant failed or refused to run, then there cannot be a recovery upon this bond, which is for the precise sum, which cannot be diminished by the discretion of the jury, but the plaintiff is entitled to recover half the amount, as a forfeiture, in another action. It is also contained in the articles that they were to run on 25 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 four minutes before 4. Where two persons agree to run or do any other act between 12 and 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, 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, the verdict should be for the defendant.

The jury could not agree, and a juror was withdrawn.

NOTE. — See Hunter v. Bynum, ante, 354, and the note thereto.

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