It is agreed by the parties in this case, that the Court may decide upon the admissibility of the testimony, &c., and the effect thereof; and enter a nonsuit or default, or give such other direction as the rights of the parties may require, upon the law and the evidence.

At about 11 o'clock, in the forenoon, at Boston, the plaintiff unlocked the trunk containing the articles alleged to have been lost, put some things on the top, without making any examination, or taking notice that it had an appearance different from that which it presented after it was packed at Amesbury, and then locked it. About four o’clock, in the afternoon of the same day, she went to the steamboat, and the trunk was taken on board by the direction of the defendant. During this interval of five hours, it may be inferred from the evidence, that the trunk was at Mr. Allison’s, in Boston ; but its situation, and want of exposure to be opened without the knowledge of the plaintiff, or any one interested, to have it kept in safety, is not at all shown. It does not appear that the plaintiff saw it during this time; and for aught which appears in the case, the contents could have *120been taken from it with as much facility, and without her knowledge, as they could have been while they were in the defendant’s charge. It is true, Mr. Allison saw the trunk when it was taken on board the boat, and he states, if it had not been locked he should probably have noticed it. But he could not say it was locked at that time, and the witness who received it of the baggage master at Bangor, testified that he took up the trunk by the handle on the top, found it give, and then saw that the lid was held down by the straps, that it was unlocked, and the catch or staple was out. From this evidence, it is manifest that the trunk might have been in the same condition when it was first taken by the defendant’s order, and if it was then unlocked, Mr. Allison might not have noticed that it was so, more than did the other witness who received it afterwards.

The evidence fails, also, to make it certain that the trunk was not opened and rifled after it was packed at Amesbury, and before the plaintiff unlocked it at Boston. The jewelry might have been taken before her arrival, and the derangement of the remaining contents of the trunk escape her notice, when she made no examination on opening it.

The evidence of a tortious taking, while the goods lost were in the defendant’s charge, is insufficient to satisfy us that he should be holden in this action, even if the legal grounds taken by the plaintiff’s counsel, are correct. There is, therefore, no basis for a decision of the questions of law, which have been, presented and discussed in argument.

Plaintiff nonsuit.