
    Wm. Hutchison and Nancy Peters, adm’r. and adm’x. of Joseph Peters, deceased, vs. Henry Edwards.
    A person who has lost and delivered property upon a horse race, may recoverit back, if he sue for the same within ninety days from the time he lost it; or, if within that period he peaceably regain possession of it, he may lawfully retain it, to the exclusion of the winner.
    This was an action of assumpsit, brought by Joseph Peters (since deceased,) against Edwards, to recover the value of a mare, exchanged to said Peters, by Edwards, and to which he alleges said Edwards had no title, in consequence of which she has been recovered from him.
    The defendant pleaded non assumpsit.
    It appeared in evidence, that the plaintiff exchanged with and received of the defendant, a bay mare, and his note for thirty dollars, for his the plaintiff’s horse, and that the property thus traded, was respectively delivered by the parties. It appeared further, that one Anderson claimed the mare as his property, to whom the plaintiff, upon proving the facts constituting this title, gave her up. Anderson derived title from one Wallace, who had won her from one Burdin, at a horse race. The mare was delivered by Burdin to Wallace, and by him afterwards sold to Anderson, from whose stable she either escaped or was taken away, one evening about sun down — the next day she was seen in Burdin’s stable, who, upon demand, refused to deliver her up. This happened between the 5th and 10th of April, 1826, and the race upon which she was won from Burdin, was run in the latter part of the preceding March. Bur-din transferred the mare to Hale and Hale to Edwards.
    It was also proved, that Wallace gave a valuable consideration for the mare.
    The court charged the jury, that if they believed from the evidence, that the mare was the property of Burdin, and that Wallace won her from him at a horse race, then Burdin could have instituted his suit within ninety days from the time the race was run, and could have recovered her, notwithstanding he had delivered her to Wallace; and if the jury believed from the evidence, that Burdin got the possession of the mare within ninety days from the time the race was run, peaceably and without committing a breach of the peace, he could legally retain the possession of the property against Wallace, or any person claiming under him with a notice of Wallace’s right, without instituting a suit within ninety days under the act of assembly, and that a transfer of the title made by Burdin, would be the superior right.
    Contracts, founded on a gaming consideration, aré void, and the loser has ninety days given him to elect whether he will sue for the specific property lost or not; and if, in the meantime, the property comes to his possession peaceably, he may lawfully retain it to the exclusion of the winner.
    - The jury found a verdict for the defendant. A new trial was moved for by the plaintiff, and refused by the court, and an appeal in error taken.
    
      Jarnegan for the plaintiff in error.
    R. Gr. Dunlap for the defendant in error.
   Per Curiam,.

The charge of the court below to the ju» ry, is substantially correct. It is within the meaning and spirit of the act of assembly. Judgment must be affirmed.

Judgment affirmed.  