Gilbert Longstreet vs. Reeside & Fuller, 1 Georgia Decisions 39

And upon a view of the authorities referred to, the Court finds the following to be the rules of Law: — First. If two enter into a contract, whereby competition is taken away, or lessened, and the Government has been thereby compelled to pay a higher price, and the parties apply to the Court to inforce such agreement, the Court will refuse to inforce it, upon the ground of public policy: or, if a party makes an offer for, or has an office, and he makes a sale of it, to the prejudice of the Government — such contract cannot be inforc-cd.

But in all these cases, the gist of the action is the illegal contract, and form the consideration of it. But in this case, what evidence have we of the nature and consideration of this contract ? No other than what appears by the written contract itself, and the pleadings.

If we look to the agreement for the consideration, do we find that the obtaining of the contract, to commence on the 1st of January, 1835, formed any part of itl — For, by the terms of agreement, Longstreet was to gire the §6000 to defendants, whether cither got the new contract, or not; provided, the defendants trans* ferred the remaining time of the old contract, and the horses, stages and harness. It, therefore, appears, that the performance of the contract was in no wise to depend on the obtaining of the new Contract, for the Mail.

By what mode of legal reasoning, then, can the Court be called on to say, that the consideration of this agreement was against public policy ? The agreement does not say so; nor was there any proof, aliunde, to establish the fact. This Court ⅛, therefore, bound to say, that neither by pleadings, nor the proof, does it appear, that the obtaining the new contract, (even supposing it to have been illegal.) formed the consideration for this agreement: and this question was fully given in charge to the Jury, who have passed upon it.

The Court, therefore, overrules the motion for a new trial, upon the third ground taken, and also the motion in arrest of judgment. The next question to be decided, is, the error imputed to the Court, in ruling out the evidence of the illegality of the contract, by aliunde testimony, under the plea of the genera,! issue.

Whatever may have been the decisions under the English Law, as admitting various defen-ces, under the general issue, our statute of 1799, has introduced a new rule, and the decisions upon that statute, are, that the general issue wall only allow the defendant to prove, that no such contract was ever made — but that all matters in satisfaction, either in whole, or in part — or in avoidance of the contract, cither by reason of its illegality, or otherwise, must be specially pleaded, and be plainly and distinctly set forth, by the defendant, that the plaintiff may be informed of what is to be proved against him.

This Court, therefore, decides — that it did not err, in rejecting the proof offered, under the general issue; and, therefore, overrules the first ground taken for a new trial.

And, as to the second ground taken, (that the damages are execs-sive,) this was a question for the Jury: and it must be a flagrant case, as to damages, before the Court would undertake to controul their verdict in this particular ; and in this case, the plaintiff adduced proof of the injury sustained by the fraud of the defendants ; and as the Jury were the competent judges, from the evidence, and the Court having no evidence of misconduct in them, it will not disturb the verdict on that ground. A new trial, upon all the grounds, is therefore refused. JOHN SHLY, Judge Superior Courts, Middle District, Georgia.