
    Kirkland v. Randon.
    A wager upon a horse-race being a valid contract, all contracts which are but subsidiary and incident to the wager are valid also; for example, the contract to forfeit in case of failure to run the race. (Note 2.) Note 2. — HIcElroy v. Carmichael, G T., 454; Crump v. Secrest, 9 T., 260; Pierce®. Randolph, 12 T-, 290; Wheeler ®. Friend, 22 T., OSS; Armstrong ®. Parohman. 42 T., 185. Contracts of this character must bo honest and fair beyond exception to entitle them to favorable consideration. (Bailes ®. Williams, 15 T., 318.) A note given to secure a deposit of the amount bet on a horse-race cannot bo enforced. (Campbell ®. Reeves, 14 T., 8.)
    
      Error from Fort Bond. Tiie appellant sued as the bearer of a negotiable promissory note.
    The defendants demurred, and further pleaded that the consideration for which tiie note was given was void, tiie same being for tho amount of a forfeit on failure to run a horse-race.
    The plaintiff excepted to all tiie matters of defense set up in tiie answer. At tiie trial the demurrer to the petition aiid the exceptions to the answer were overruled; and the canse being submitted to the court, judgment was entered for defendants. There was but one witness introduced, wlio testified, in effect, that tiie note was delivered to him by the defendants, as a stakeholder, on a race agreed to he rnu by Alfred Bails, tiie payee of tiie note, and tiie defendant, Compton; that Compton failed to appear at the day and place appointed to run tiie race ; that judges were appointed, and the horse of Bails was run around the track, and that, the witness on tiie same day delivered tiie note to Bails; that the plaintiff was one of tiie judges, and knew what the note was given for; that witness delivered the note to Bails without tiie request of the judges or of the defendants; that the judges were duly appointed, and the horse of Bails regularly run oyer the track, and the note o£ defendants given up to Bails as forfeiture, according to the rules of racing.
    
      N. H. Hunger, for plaintiff in error.
    
      Alexander and Atchison, for defendants in error.
   Hemphill, Ch. J.

Prom the testimony it appears there was no trick, unfairness, or fraud on the part of the plaintiff or the payee in the inception of this contract, or in any of the acts upon which by its terms the liability of the defendants on the note was to arise. The proceedings on the race track and the delivery of the note were all done in conformity'with the customary rules and regulations on the subject of racing-.

Unless the consideration of the note was illegal and void, the defendants were clearly' liable on their undertaking. We have decided in several cases that wagers on horse-races were recoverable at common law, and as they were not prohibited by statute in this State, an action upon them was maintainable. Wagers on horse-races may be regarded not only as indifferent wagers upon indifferent matters, and therefore not obnoxious to the law, but their exclusion from the general gaming contracts may be placed, and I presume is by the Legislature, on the; ground that they tend to stimulate and encourage an improvement in the breed and qualities of the horse. That such is the fact the history of this animal in England and the United States would doubtless abundantly prove. But, be the policy which supports the validity of such wagers what it may, it must equally extend to and sustain all contracts which are but subsidiary and incident to the wagers themselves. The contract for forfeiture is based upon the loss of time and charges and expenses necessarily incurred for preparations to the race, and we see no good reason for sustaining the contract for the wager and rejecting that for the forfeiture ; and it is ordered, adjudged, and decreed that the judgment be reversed and the cause remanded for further proceedings.

Judgment reversed.  