Richardson vs. Roberts.

That on the said verdict obtained against him, execution has issued; and the defendant who is plaintiff in fi. fa. is proceeding to collect the same, and that at law, he is unable to resist it, and prays it may be enjoined until an issue is made up, on the facts herein charged, and if found true, a new trial be granted him in said case of slander; and until a trial is had on said indictment against Griggs, and if Griggs is convicted, that the complainant have leave to move to set aside the judgment in said slander suit obtained against him.

The facts of this bill will be found in the case of William Richardson against Mary Jane Roberts. 23 Ga. 215.

The Judge, upon reading the bill, refused the prayer in the following language.

"The injunction and relief sought by this bill are predicated on the ground that the verdict of the jury was obtained by the perjury of Nathaniel Griggs, a witness in the cause, and on the newly discovered evidence of Span, Ragan, Samuel Gassett and Eveline Gassett, by whom the perjury would be established.

The perjury complained of is, that Griggs, on the trial, swore that Roberts, the husband of defendant to this bill, and plaintiff in the action of slander, died in October, 1847, at his house, and that she gave birth to a child in April, 1848. The affidavits of Ragan and Mr. and Mrs. Gassett, state that Roberts died in Macon county, in the year 1845; that the defendant in this bill continued to reside there some two or three years thereafter without giving birth to a child. There is an admitted conflict in the evidence, which it is considered established the fact that Griggs swore falsely, both as to the time of Roberts' death, and the period which elapsed between his death and the birth of the child. But conceding the fact that Griggs swore falsely, and was perjured, and that Mrs. Roberts gave birth to an illegitimate child in 1848, and that the newly discovered evidence would prove it; would this establish the truth of the slanderous words uttered by

Richardson vs. Roberts.

the complainant against the defendant in 1854? There were two counts in the action of slander, charging, in substance, the defendant in this bill with having given birth to an illegitimate child; that Griggs was its father, and that he, Griggs, kept her from marrying for the purpose of cohabiting with her. The complainant, by interposing the plea of justification, admits the speaking of the words, and it is incumbent on him to support their verity by proof.

As before observed, would the admitted perjury of Griggs, and the fact conceded, that the child born in 1848 was illegitimate, and that Roberts died in 1845, establish the truth of the plea of justification, to-wit, that the illegitimate child was Griggs', and that he and the defendant to this bill were cohabiting together in December, 1854? I think not. The de-, fendant's character, such as it was at the time of speaking of the words, is put in issue. She might have had an illegitimate child in 1848, and by reformation and amendment in her conduct, acquired a very different character for virtue and chastity, some six or seven years thereafter; it was then entitled to such protection as it merited. Again, expunge Griggs' testimony entirely from the record, and I consider the remaining testimony in the case would fully sustain the finding of the jury; or in other words, the jury would justly return the verdict they did, without Griggs' testimony.

Entertaining the views and opinions above expressed, I refuse to sanction the bill, for the reasons given.

HENRY G. LAMAR, J. S. C. M. C.

December 14th, 1857.

To which decision complainant's counsel excepted, and assigns the same as error.

HUNTER, for plaintiff in error.

GEORGE W. NORMAN, for defendant in error.

VOL XXV.-43

Richardson vs. Roberts.

By the Court.-BENNING, J. delivering the opinion.

Was the Court right in refusing its sanction to this bill? We think so.

"Any verdict or judgment, rule or order of Court, which may have been obtained or entered up, shall be set aside, and shall be of no effect, if it shall appear that the same was obtained or entered up in consequence of wilful and corrupt perjury; and it shall be the duty of the Court in which such verdict, judgment, rule or order, may have been obtained or entered up, to cause the same to be set aside upon motion and notice to the adverse party; but it shall not be lawful for the said Court to do so, unless the person charged with said perjury, shall have been thereof duly convicted, and unless it shall appear to the said Court, that the said verdict, judgment, rule, or order, could not have been obtained or entered up, without the evidence of such perjured person." 8 Sec. 8 Div. Penal Code.

The person here charged with the perjury, Griggs, has not, as yet, been convicted of the charge. But let that pass.

Is it true, that it appears here, that the verdict "could not have been obtained" "without the evidence" of Griggs? By no means.

The slanderous words declared on, were, in substance, that Mary J. Roberts had had a bastard by Griggs; and that he was keeping her unmarried for his own purposes. The speaking of these words was proved by others, than Griggs. Besides, there was a plea of justification.

The plaintiff's case, then, in the slander suit was fully made out without the evidence of Griggs; and she was entitled to recover without his evidence, unless the defendant, Richardson, proved his plea of justification.

As to that plea. Leaving Grigg's evidence out of the question, it is by no means clear, that the rest of the evidence showed him the father of Mary J. Robert's child, assuming it to have

Ford vs Smith.

been a bastard; or showed him keeping her unmarried for his own purposes. See the evidence.

Even the newly discovered evidence itself would fail to make out these charges, however it might serve to show, that the child was a bastard.

It must follow, then, that it is not true, that it appears here, that the verdict "could not have been obtained without the evidence" of Griggs.

This being so, the section aforesaid—of the Code, comes in, and makes it unlawful for the Court to set aside the verdict, even though it may be true that Griggs was guilty of perjury, in his evidence.

And, certainly, bills of this sort ought not, for reasons most obvious, to receive any encouragement.

Judgment affirmed.

GARY G. FORD, plaintiff in error, vs. STEPHEN R. SMITH, defendant in error.

[1.] The rule that words spoken before and at the making of a written contract merge in the contract does not apply when the words spoken themselves constitute a contract, the parties to which, are not the same as the parties to the written contract.

[2.] When a contract has been repudiated by both of the parties to it, it ceases to be the criterion for measuring the rights and liabilities between the parties to it. [3.] Even when the work has not been done according to the contract, yet if received, and of benefit of the party receiving it, he shall pay for it a sum equal to the value of the labor and materials.

Assumpsit, from Worth county. October Term, 1858, Judge POWERS, presiding.

Ford vs. Smith.

Smith brought an action against Ford, alleging in the first count, the making of a contract with Ford, to furnish materials and build him a house by a certain time, viz: the 18th of April, 1855, for which Ford was to pay him a certain sum; that after performing a certain amount of labor, Ford discharged him. The second and third counts are quantum meruit counts. The contract was proven; the circumstances attending its non-completion, and the value of the materials and labor actually furnished and performed.

Plaintiff proposed to prove that it was agreed before, at the time of, and after the making of the contract, that one R. G. Ford was to saw the lumber; defendant objected, and the Court overruled the objection.

The Court charged the jury, that plaintiff sought to recover on two counts, and explained to the jury the nature of special contracts, and the law applicable to them; and charged them that the plaintiff in this case could not recover on the special contract, but if they believed, after plaintiff had done considerable work on the house, defendant, taking advantage of his failure to comply with the contract, took possession of the house, and refused to let plaintiff complete the job, that plaintiff was entitled to as much as his labor and materials were actually worth, without regard to the special contract; that defendant could have protected himself under said contract, by refusing to take the house; if he took it. voluntarily, and enjoyed it, he ought to pay what it was worth, and no more. To this charge counsel for defendant excepted.

Defendant requested the Court to charge, that if defendant was induced to take possession by the promise of Smith to go on immediately and finish the house, that such possession was no recognition of a compliance with the contract by Smith, and plaintiff cannot recover unless the evidence shows an enlargement of the time for finishing the work. The Court refused this charge, and modified the same by saying, that it was the law in a proper case, but if he went in this