
    
      MORGAN vs. MADDOX & AL.
    
    West’n. District.
    
      October 1829.
    
    The defendant is bound to adduce every evidence necessary to support his plea.
    The payee of a promissory note, is not bound to join, as plaintiff, a person not named on it, having a right to receive part of the proceeds.
    Appeal from the court of the seventh judicial district, the judge of the district presiding.
   Mathews, J.

delivered the opinion of the court. This suit is brought on a promissory note, made in the usual form, by which the defendants bound themselves, jointly and severally, to pay to the plaintiff five hundred dollars. The consideration, for which the

note was given, is attacked in the answer, as being illegal, and the cause was submitted to a jury, in the court below, who found a verdict for the plaintiff, and from a judgment rendered thereon, the defendant took this appeal.

It appears, by the evidence of the case, that the note was executed to serve as a stake on a horse race, which the parties had agreed to run. This agreement, the defendants allege, was made in writing, and insist, that the plaintiff was bound to produce it in evidence, to enable him to recover. We are, however, of opinion, that as the aliatory contract was pleaded in defence, it was incumbent on the appellants to have exhibited it on the trial; in other words, they were bound to furnish all evidence necessary to support the defence, as pleaded.

On the trial in the court below, witnesses were adduced to prove such misconduct of the rider on the winning horse, as ought, according to established rules on the subject of racing, to destroy all advantage which would otherwise have accrued, in consequence of his having first passed the goal which terminated the race—to prove (in the jockey term) foul riding. Disputes of this kind are generally referred to the judges of the race, and their decision ought to have weight. In the present case, that step does not appear to have been taken, as no evidence of it is found in the record. The testimony is various, and the jury are the proper judges to determine on its credibility; nothing is discovered in the procedure, which demonstrates, that they did not come to a correct conclusion, and their verdict ought not to be disturbed. The note is made payable to the plaintiff alone, and he has a right to maintain his action for the whole amount therein expressed, although he may be liable to pay over a part to some other person, on a separate contract, in which the defendants have no concern—they are entire strangers to such contract and can claim no advantage from it.

Flint and Scott for plaintiff, Rigg and Winn for defendants.

It is therefore ordered,adjudged and decreed, that the judgment of the district court be affirmed, with costs.  