Scammon

On April 12, 1875, plaintiff delivered to defendant at Downieville two sealed packages of gold-dust, of the value of $3,758.93, but which he represented to be of the value of $3,260, to be transported by defendant’s express to plaintiff’s agent, the London and San Francisco Bank, Limited, at San Francisco. The packages were placed by defendant with other packages of gold-dust, valued at about two thousand dollars, in the express-box. On April 13, 1875, the stage-coach in which the gold was being transported from Downieville was stopped by a highwayman, and robbed of all its treasure. On April 21st, the-bank (plaintiff’s agent) demanded the packages, or their value. Defendant thereupon, and without knowing that the bank was not the owner of the property, paid to it the sum of $3,260, and took a receipt from it, in which the two packages were specified as being a sealed bag valued at $160, and a sealed package valued at $3,100, “taken by robbers at Oregon Hill, April 14, 1875.” At the time this payment was made the defendant had no knowledge that the bank was not the owner of the packages, and did not know by whom the robbery was committed, or where the property was concealed.…