Opinion
March Term, 1793.
1. In running a race, one rider may use every fair means to get the track of the other, but neither has a right to strike the other's horse, run on his heels, or do anything of the kind; if one horse get the track of the other, he is not obliged to leave it to save the other's being poled, and if he be jostled, or the like, so as to lose the track, the one that gave the jostle will be distanced, though he did it to save being poled himself.
2. The opinion of the judges of a race is not conclusive: the matter may be afterwards examined by a jury upon testimony produced before term.
3. Where there is a stakeholder, the action lies against him, and not against the losing party, by the party that wins the race.
This was an action upon the case, for money had and received, by the defendant to and for the use of the plaintiff, upon the following case. The plaintiff and Lee Dekeyser made a race to be run the four-mile heats, between the Hyder Ali and the Centinel for £ 500: which was staked by each party in the hands of the defendant, to hold the same, till the event of the race was determined.
Davie for the plaintiff.
And Taylor for the defendant.
The horses were started fairly. The Centinel had the track, but the Hyder bore down upon him, and at the distance of about 150 yards from the start, the Centinel bearing in and having before roughed it on the inner side of the track, was running within the poles which stood at that distance; but his rider checked him short at the pole and drew his head on the outside of it, knocked it down by the inner side of his neck, and jostled against the Hyder, who by this stumble, having before outran him, entirely took the track and cleared himself of the Centinel. An article in the race articles said that, whoever rode otherwise than fair, according to the rules of racing, should be considered as distanced, and lose the race.
All the witnesses, except Col. Brown and Mr. Edward Jones, said they thought the horses never touched each other before the Centinel struck the pole. Those two gentlemen were rather of opinion that they did touch before, and Col. Brown said he thought the Centinel was borne out of the track by the superior weight and strength of the Hyder. They all agree, however, that no direct foul play was apparently used.
The question was, whether the Hyder was distanced, as having run unfairly. (55)
recited the testimony, and then said that in running a race, one rider may use every fair means to get the track of the other; but neither has a right to jostle the other, to strike his horse, to run on his heels, or anything of the kind. If one horse gets the track of the other, he is not obliged to leave it, to save the other's being poled, and if he is jostled or the like so as to lose the track, the one that gave the jostle will be distanced, though he did it to save being poled himself. The opinion of the judges of the race is not conclusive. The matter may be afterwards examined by a jury upon testimony produced before them. His Honor here said that he remembered the case of one Pucket in Halifax Superior Court, ten or twelve years ago: where the judges of the race at the start differed in opinion, one saying that there was half a neck difference, and the other that they were even, and at the other end the judges agreed that there was half a neck difference, but they all agreed together that it should be a draw race. Pucket, however, who started the horse that came through first, recovered before a jury, by dividing the difference between the opinions of the two judges at the start, so as to win the race only by the distance of the quarter of the length of the horse's neck.
Hyder got the track, and the other left it. Here is the point, whether the track was obtained fairly or not. Col. Brown says he thinks Hyder forced the Centinel out of the track by his weight. If this was the case it was not fair, but whether agreeable to the rules of racing or not, I cannot tell. It is true the plaintiff's witnesses are generally sportsmen, and of course their curiosity was engaged, and the probability is that they observed nicely, but they only speak negatively, etc.
It was clearly held by both the judges that an action will lay against the stakeholder, by the party that won the race; and none would lie against the losing party, because he had complied with that article of the agreement, which obliged him to pay, by staking his money with the defendant.
(56) A verdict was found, under these charges, for the plaintiff. ASHE, J., and WILLIAMS, J., present.
NOTE. — That the opinion of the judges of a horse race is not conclusive was also held in Moore v. Simpson, 5 N.C. 33. The Act of 1810 (1 Rev. Stat., ch. 51) makes void all bets, contracts, etc., respecting horse racing; and it has been determined under that act that if money bet on a horse race be deposited with a stakeholder, to be by him delivered to the winner, and the stakeholder pay over the money to the winner, after notice from the loser not to do so, the latter may recover the money from the stakeholder. Wood v. Wood, 7 N.C. 172. See, also, Forrest v. Hart, ibid., 458.