
    Wilson v. Gardner.
    APPEAL from the Shelby Common Pleas.
   Ray, J.

— Suit by appellee to recover five hundred dollars lost to the appellant on the result of a horse race. Answer in denial, and in a second paragraph averring that the appellant lost the money to one Browning and the appellee, one-half to each. This answer was as to part of the complaint, but the evidence could have been and was introduced under the general denial, and there was no error in the action of the court in striking out the paragraph on motion. On the trial, the court found for the appellee. The testimony of the stakeholder was that the bet was made between the appellee and appellant, and that he never knew that any one else was interested in the result, and that after the race he paid over the money to the appellant. As the liability is incurred under the statute by receiving the money won upon the bet, this evidence sustains the finding below. The appellant states that he received the money from the stakeholder, and handed it back to him to be counted, and that when five hundred dollars had been counted out in one package, and while the stakeholder was looking down, Browning or Kinney reached forward and took that sum. We cannot reverse a finding upon .such evidence'.

M. M. Ray, J. W. Gordon and W. March, for appellant.

S. Claypool, for appellee.

The judgment is affirmed, with five per cent, damages and costs.  