25 Ga. 61 | Ga. | 1858
By the Court.
delivering the opinion.
The plaintiffs sued the defendants in the Court below for the recovery of damages, alleged to have been sustained by them, to a large amount, by reason of the seizure and detention by them* as the agents of the Western and Atlantic Railroad, of a large amount of “gold and silver coin, ore, bullion* &e., bank bills, banker’s checks and drafts, acceptances and other assets of great value, to-wit: in all, the value of $87,-000,” which were contained, with other things, in a glazed cloth bag, and which one of the plaintiffs had in his own custody, in his own care, at his seat in the passenger car, and which were not placed under the care or in the custody of said railroad, or the conductor of the passenger train, or any other officer or agent of the railroad. On the arrival of the train at the passenger depot in Atlanta, the defendant entered (he car and demanded of Eusebius Hutchings, one of the plaintiffs, the possession of the baggage, or the payment of the sum of forty dollars as freight on the gold, according to the published rates of freights on- said road, and they refused to allow him to remove the same from the car without the payment of the said forty dollars. The said plaintiff refused to pay, protesting against the right of the defendants to take possession of the said bag, and against their right to make any charge for freight thereon; nevertheless, the defendants refused to allow the plaintiff to remove from the car with the said bagaage, and by violence, and with force and arms, took and retained possession thereof for the space of four days, &c., &c.
The defendants demurred to the declaration, and the Court sustained the demurrer, except as to the plaintiffs’ right to recover the seventeen dollars, to which judgment of the Court below the plaintiffs except.
It is true, that under the circumstances of this case, the plaintiffs may not have been entitled to recover from the defendants if they had lost the money. But not because the State was not liable to pay for losses sustained by travelers on the road, but because the. owners were guilty of a fraud, by concealing the fact that their bags contained a large sum of money. Gibson vs. Peyton et al., 4 Burr, 2300; Batson vs. Denovah, 6 Eng. Com. Rep. 333.
The declaration, in this case, furnishes strong evidence of a fraudulent concealment of the contents of this traveling bag. It avers that the plaintiff, Hutching, “ refused to be catechised, orto answer in any way, as to the contents of said baggage.”
Judgment affirmed.