This is an action of assumpsit against the defendants as common carriers. The plaintiff alleges that, on the 29th day of June, 1866, he was a passenger on board the steamboat " Star of the East,” on her passage from Boston to Gardiner; that, during her passage, his wallet, containing $197,56, was stolen from his pocket, and claims that the defendants are liable for the loss.
It is admitted that the sum, before mentioned, was stolen from the plaintiff’s pocket by some person unknown — that he paid the usual fare for one passenger, and did not deliver his money into the custody of the defendants or their agent, nor give them any notice that he had the money on his person— that the defendants were the owners of the boat, and common carriers of persons and freight from Boston to Gar-diner.
*532While the rule of law applicable to common carriers has been most stringently construed against them, yet the plaintiff’s counsel, with all his research and great industry, has found no case charging them for the loss of property not within their custody and control, such as baggage and merchandise actually delivered. Even in the case of Jordan v. Fall River Railroad Co., 5 Cush., 69, the trunk was delivered to the baggage master, containing a large sum of money, which was subsequently stolen; yet the Court held that the defendants, having no notice that the trunk contained anything more than the common luggage of a traveller, were not responsible for more of the money-than sufficent for ordinary travelling expenses. It is a familiar remark, that " hard cases make shipwreck of law,” and this may have been one of that description.
But it is contended, and evidence was introduced tending to show, that the money was stolen by one of the employees of the boat. If satisfied that such was the case, we might, perhaps, hold the defendants responsible. While the testimony may excite a suspicion, yet it fails to prove the fact.
Plaintiff nonsuit.
Appleton, 0. J., and Danforth, J., concurred. Walton, Dickerson and Tapley, JJ., concurred in the result.