
    Crump v. Secrest.
    In the absence of fraud, the surety on a-note given as a forfeit in case of failuro to run a horse-race, cannot resist the collection of the note.
    Error from Bexar. The suit was on the joint and several promissory note of Ililburn, Roaker, and Crump. The defense was that the note was given as a wager on the result of a horse-race, and that the race was not run; that the defendant Crump was only security for Hilburu, and that he, Crump, had no notice that Ililburn had declined running the race.
    The only evidence was that of Secrest and Martin; the former by interrogatories filed, and the latter by oral evidence to the jury. Secrest in his answers said that it was not given as a wager on the result of a horse-race, and to the interrogatory whether the race was run, said that it was not. In answer to the interrogatory whether Crump had notice or was consulted as to failure to run the race, lie said lie was not. Martin’s evidence proved that the note was given as a forfeit for failing to run.
    J. A. fy O. W. Paschal, for plaintiff in error.
    
      Dooley, for defendant in error.
   Lipscomb, J.

The whole evidence offered, excepting the note, was on tlio part of Crump, and it is all reconcilable. The note was not given as a wager on the result of the race, but was deposited as a forfeiture if the race was not run. The evidence is very unsatisfactory and does not make out the defense set up by Crump, if that was a good defense in law, which, however, is not admitted. If it had been charged in the answer of Crump that there was a fraudulent combination between Ililburn and Secrest that the note sued should be given, and then that Hilburn should fail to run the race, and proof to support the charge, Crump, as the security of Hilburn, would have been entitled to relief, and the defense would have been good. But it cannot be perceived how Crump could l)e relieved from his undertaking and promise in the absence of any fraud or combination, in which Secrest, the payee, was a participant, whether the note was given as a wager on the result of a horse-race, or was deposited as a forfeiture should Hilburn fail to run the race. At all events lie lias failed to prove that the note was given on the result of the race, and the judgment must be affirmed. This case, notwithstanding it was argued at some length, does seem to involve so little difficulty that, but for the character of the suit, I should feel disposed to consider it a delay case for which damages should be allowed.

Judgment affirmed.  