85 Ga. 159 | Ga. | 1890
The governor brought suit on the bond of the defendant for $3,800 damages caused by the escape of nineteen named convicts, giving the date and place of each, and alleging that each and every escape was negligent and caused by the carelessness and insufficient watchfulness of the guards, employees and officers of the company who were in charge of the convicts. Attached to the declaration is a copy of the bond in the sum of $37,500, dated June 21, 1876, requiring, among other things, that the principal shall keep the convicts hired to it “securely, without expense to the State, and with such guards and safeguards as the law requires, and manage and keep them in aeeoi’dance with the rules and regulations now of force or which may hereafter be legally adopted for the control of such convicts, . . report under oath all escapes and the- circum
There was no error in admitting these orders as evidence. They were the basis of the right of the plaintiff to recover in the case. If the plaintiff had failed to show that the. governor had considered these escapes and had rendered his judgment that the defendant was negligent therein, he would have failed to make out his case, and the court would have been compelled on motion to grant a nonsuit. The 7th section of the act of 1876 (p. 40), relating to the leasing out of penitentiary convicts by .the governor, declares that “it shall be the duty of the lessee or lessees under this act, immediately after any escape, to make a report in writing to the principal keeper, who shall lay the same before the governor, of all the circumstances attending such escape, and if the governor shall find therefrom, or by any other means, that such escape was caused by negligence, it shall be his duty to institute suit for the damages herein provided for.” The law at that time made it a condition precedent to bringing suit for the escape of a convict, that the governor should find that the escape was negligent. He was required to make the investigation from the reports of the lessees, and by other means, and render his decision before suit could be brought. There was no presumption against the defendant until that decision by the governor was rendered. "When he did make the investigation and determined that the defendant was negligent, that decision became prima fade the truth, and was binding
8. The defendant filed the following plea:
“That as to the escapes sued on and which occurred prior to September 12th, 1885, this defendant fully settled with the State, to wit, on said date, by an agreement then and there had with the governor of said State, in pursuance of whieh and in execution of which said agreement, this defendant by its president then and there paid to plaintiff the sum of eighteen hundred dollars, which was in full payment and satisfaction of and for all liability of defendant on account of said escapes to that time; and of this defendant puts itself upon the country.”
The defendant complains that, under this plea, the court erred in ruling out the testimony of Lowe, Towers and others, in substance as follows: that there was a claim upon the part of the State being urged by the governor as to these escapes; that the defendant denied liability and negligence; and that with all these facts before him, the governor agreed that he would take for the State the sum of $1,800 for escapes to September 12,1885, as a settlement of the account between the State and Penitentiary Co. No. 2 on account of escapes of convicts; and that in pursuance of that agreement, a check of that amount and date was made by Lowe and delivered to the governor in the presence of Towers (the principal keeper) and by the treasurer was covered into the State treasury. There was no error in excluding this testimony. If the plea was a plea of payment, as contended by cohnsel for the plaintiff in error, the evidence offered did not tend to establish the truth thereof, because it shows that the amount of the check was not the full amount ’ which the governor claimed was due the State. If it was a plea of accord and sat-