This was an appeal from a decision of the judge of the Gloucestershire County Court.
The plaintiff (Rimell) claimed £39- 9s. for the loss of a parcel containing watches of that value, which had been delivered to the Great Northern Railway Company by the plaintiff, to be carried by them from Gloucester to London, and which were alleged to have been lost through their carelessness and negligence.
The case was stated by the judge for the opinion of this court as follows :—
" The following evidence was given at the trial on the 7th of February, 1856 :—
" Mr. Helps, for the defendants, pleaded not guilty, and referred to the land carriers act, 11 G. 4 & 1 W. 4, c. 68, ss. 1, 2, 3, 4, 8.
" Samuel Rimell, brother to plaintiff. In his employment. Recollected taking a parcel to the station at Gloucester for Mr. Lutiger, on the 18th of January, 1855. Delivered it to Bossom, a porter at the Great Western Railway, who signed for it; compared the address on the parcel with the book produced.
" Cross-examined. The book was filled up at the shop ready for signature. It was about 8 o'clock at night when he delivered the parcel. Gave no notice of the contents, and nothing passed except the delivery of the parcel and the signing of the book.
"Re-examination. The direction was, 'J. H. Lutiger, Great St. Helen's, Bishopsgate Street, London.'
" James H. Lutiger. I am agent for the Swiss Watch Manufactory, and live in London. I received a letter from the plaintiff, stating he had forwarded a parcel to me by the Great Western Railway; and I have the letter. I never received that parcel. I went to the Great Western Railway station at Paddington, and saw an entry of the parcel having been received in Gloucester; but I was told it was not received in London.
" Cross-examined. I saw the clerk at the parcel-office. I did not see the chief inspector of police. I do not know of a robbery having been advertised in the papers. They promised to make every inquiry.
" Re-examined. They promised to inquire where it had been left, or if lost. I received the letter from Rimell on the 19th, and inquired at the station about two days afterwards.
" George Rimell, plaintiff. I am a silversmith. I received from Lutiger between the 11th and 16th of January, 1855, a quantity of goods, in value about £120. I selected about £80. worth, and returned the rest to him. They were packed in a small box, with partitions for each watch. The value of them was £39 - 9s. The value of the box is about £1 - 3s.
" Mr. Carter here applied to introduce the box into the particulars. Mr. Helps objected. The judge ruled against it, as justice did not require him to substitute that which the parties did not come there to try, to save a verdict. He would not amend.
"Examination continued. I wrote the same day to Lutiger, and received a letter from him, that he had not received the parcel. I addressed the parcel myself with the full address.
" Cross-examined. I made up the parcel myself. I either addressed it or stood by when it was addressed. I cannot say whether I was in the shop when my brother went with the parcel. I know he took it to the railway. Several days after the parcel was lost, I went to Mr. Ashbee at the station. I sent to the station as soon as I heard the parcel was not received; and, some time after, Mr. Collard, the chief inspector of police, and Mr. Giles, the local inspector, called at my house, and represented that the company were very anxious to find out if they had been robbed. I do not dispute that the company issued handbills about it. When I was asked, I gave Mr. Collard the particulars of the watches ; and this is an exact copy now produced. I wrote letters to them afterwards; and Mr. Collard said he had found a watch with my name on, but it turned out it was not one of the watches lost. I have no doubt I told them the way-bill was wrong. I called at the Great Western station a few days after the parcel was lost, and went into Mr. Ashbee's private office; and, while there, Mr. Helps came in, and Ashbee said, 'Here's Mr. Rimell has lost a valuable parcel;' and it was asked what it was. Mr. Helps asked if it was insured: and Ashbee said 'No.' They then walked to the end of the office from me; and Mr. Ashbee said to Mr. Helps something to this effect,—'The worst of it is, something is wrong as to the way-bill.' That caused me to make further inquiry, which resulted in this action being brought. I also gave some particulars on the 7th of March to Mr. Potter, one of the directors of the company, to the effect that something was wrong in the way-bill. [A letter written to Mr. Potter was read.] I made inquiries before I wrote to Mr. Potter. [A letter was produced by Mr. Helps for the witness to read, dated the 8th of October, directed to Mr. Ashbee, wherein it was stated that the witness was in a position to prove beyond doubt that the parcel was stolen by one of the company's servants.] I have not yet had the chance of proving it. I believe it now, unless I am mistaken, on the production of the books. As far as my own judgment goes, I believe the parcel was not lost, but stolen. The charge for the parcel to London was 9d. I think the parcel was sent down after tea.
" John Ashbee, superintendent, produced the parcel-book and waybill for the night mail train of the 18th of January, 1855. The first entry in the way-bill relates to this parcel. The office porter takes the parcels out on a barrow, and delivers them to a guard, and calls them over to see if they are all correct, and, if so, checks them with the way-bill. The guard's book and the way-bill will correspond, if correct. The parcels are checked in London with the way-bill. A memorandum book is supplied by the company to the guard. The way-bills are not made out in the same way now: the addresses are added, and there has been an alteration since; the small parcels are locked in a bag: the guard has no key. I dare say that is in consequence of repeated losses. I never heard on this occasion, instead of eleven parcels going up, there were twelve. I heard of a parcel coming very late that evening. I cannot say whether that was omitted from the guard's book. [A leaf from the guard's book produced.] The number received on the bill at Gloucester, was, eleven, and, on the guard's book, only ten.
" Cross-examined. On receiving information of the parcel being missing, we instantly made every inquiry. The parcel-book produced, and corresponded with the way-bill, and eleven parcels found to be going that night to London. I made inquiries about the eleventh parcel, and found it came in late, after the guard had received his parcels, was entered on the way-bill and in the parcels-book, and was duly delivered in London. I know Price, the guard. I never knew him to lose a parcel. No suspicion attached to him. He is now in the company's employ. Bossom has been in the company's employ three years, and is so still. No suspicion attached to him. Every exertion was made to recover the parcel, and every information searched for in every direction. There is a notice stuck up in the parcels office, under the 11 G. 4 & 1 W. 4, c. 68. [Notice produced.] Had the parcel been insured, it would have been specially taken care of; but, brought as an ordinary parcel, it would be chucked down in the London corner. " Re-examined. The parcels are thrown down. They are not left to take care of themselves. There is always some one in the office, unless the door is locked: the clerk or porter going out locks the door. These are the instructions. They ought not to leave the office without locking the door: they would not do so. The name Lutiger on the waybill and the parcel-book appear in different handwritings. There are two guards by the mail-train. They lock the parcels in the train in which they ride,—in the adjoining compartment. One guard, the chief guard, has charge of the parcels, and receives and delivers them at the different stations, as he goes along the line. " Thomas Bossom. In the employ of the railway company. I remember receiving the parcel from the plaintiff; and I signed a receipt. I made the entry in the parcel-book. I remember receiving a parcel from Mr. Smallridge's clerk very late in the evening, addressed to 'Blaxland.' I at first objected to forward it; but I did so, and fetched the way-bill from the guard's box, and entered it and put it in the compartment of the carriage with the other parcels. The guard was not there at that time. By the box, I mean a box in the passengers' department of the carriage. I did not see the guard. I had no opportunity of telling him of the parcel. He might be going to the Cheltenham train, to see after the parcels from Cheltenham.
" Cross-examined. I have received parcels for some years. Smallridge's parcel was the last entered on the way-bill that came to me after I had delivered to the guard the ten parcels. The word ' Lutiger' on the way-bill, and in the parcels-book, is in my handwriting. I delivered ten parcels to Price, and we went over them together, and they agreed as stated on the way-bill. If I had been told the parcel was of great value, the guard could have taken it with him in his pocket, or in the box he rides in. " Re-examined. The guard could put a small parcel in his jacket pocket. The insured and uninsured parcels do not go in the same box. The insured parcels go in the same box with the guard, and the others in the next box. I believe other valuable parcels have been lost. When Mr. Smallridge's parcel arrived, the way-bill was in the guard's box. I unlocked the box, and took out the way-bill. I took it to the office. There I entered the parcel. Nobody was near the box when this took place. No guard or other person. There is the same lock to one box as to another. Other persons have keys that open the box. Other persons might have unlocked the box as well as me. I am quite sure I locked the box when I took away the way-bill. At that time, a house was kept by one Dale,—the Wellington. If one guard went there, the other would remain at the platform. It is now lately the practice to put on the way-bill the full address on the parcel. I believe that is in consequence of the loss of parcels. " To the judge. There are other persons who have access to the carriages. A good many workmen in the company's service, who repair carriages, have keys which open the parcel-box; and passengers also have keys,—that is, keys of the boots of dog-carts are similar; and I have seen passengers open the carriages. On the night the parcel was lost, there were three porters on the platform who had such keys, and the two guards; and that would be the case all along the line. Where the guard keeps his parcels is like a passengers' box ; but passengers do not ride in it.
" George Blamford proved seeing Bossom take Smallridge's parcel to the train. Could not see if either of the guards was present.
" This closed the plaintiff's case: whereupon Mr. Helps, for the defendants, applied to the judge for a nonsuit. Mr. Helps cited the cases of Hinton v. Dibbin, 2 Q. B. 663 (E. C. L. R. vol. 42), Baxendale v. Hart, 16 Jurist, 127, and Butt v. The Great Western Railway Company, 11 C. B. 140 (E. C. L. R. vol. 73); and contended, that, the parcel not being declared, it was not a question of negligence, and it was clear law, that even gross negligence would not make the defendants liable; and, in order to make the defendants liable on a felonious act of their servants, the onus to prove an act of felony rested with the plaintiff; that there was no evidence beyond the receipt of the parcel, and its non-arrival,—no proof of any felony having been committed by any one ; still less by any one of the defendants' servants.
" The judge declined to nonsuit, considering there was some evidence to go to the jury of the loss being occasioned by the felony of some of the company's servants, and negligence on the part of the company.
" The defendants then called the following witnesses:—
" Joseph Collard. Chief inspector of police of the Great Western Railway. In consequence of the loss of the parcel, I took every possible means to trace it. I searched the houses of all the porters at Gloucester and Swindon who were on duty that night. No suspicion rested on any one of the company's servants in consequence of the investigation. I had no reason to suspect any one. I applied to the guard, and took a leaf from his book. There were losses at the same time from Swindon and other places.
" Edward Gayler. Inspector at Gloucester. I assisted Mr. Collard at Gloucester in making inquiries and searching houses. No suspicion attached to any of the railway servants.
" John Price. Was guard on the evening of the 18th of January, 1855. I remember having received ten parcels from Bossom; the parcel for Lutiger was not one of them. After the train had started, I found eleven parcels entered on the way-bill; but I only received ten ; which I reported at Paddington. The way-bill shows eleven parcels. I reported at Paddington I was one short. I have never lost a parcel before nor since. I have carried hundreds of thousands of parcels. I have been a parcel guard from two months after my employment. I put it along with the ordinary parcels. I did not go off the platform that night at Gloucester.
" Cross-examined. I received ten parcels. I never found out there were eleven parcels in. I knew nothing of the eleventh parcel being put in. There were eleven parcels in the way-bill; and I never made out the eleventh. I have had no orders about parcels lately.
" Re-examined. Bossom brought me the barrow with the parcels and the bill, and I counted ten parcels. As soon as the train was in motion, I saw the bill had been moved, and I took it up, and saw an eleventh parcel had been entered. I noticed in my book ten parcels received, and the eleventh in the bill. I could not then count the parcels, because they were in the next box.
" To the judge. I did not count the parcels till I got to London. I remember I had only received ten parcels. I have no recollection of this particular parcel. When we receive the parcels, we only count them.
" Thomas Graham, superintendent of the Western district of the Great Western Railway, resident at Bristol. I put Collard and the other parties in motion immediately on hearing of the loss. The result of the investigation did not throw any suspicion on either of the company's servants.
" The judge, in summing up, told the jury, that, to entitle the plaintiff to a verdict, they must be satisfied of both of two facts,—first, that a felony had been committed with the parcel in question by some one of the company's servants,—and, secondly, that such felony was caused or facilitated by the negligence of the company or their servants : and that, if they were satisfied that the parcel had been stolen by some one of the company's servants, but were not of opinion that such felony was occasioned or facilitated by the negligence of the company, or, if they were of opinion that the parcel had been lost by the negligence of the company, but were not satisfied that a felony had been committed by some one of the company's servants,—in either case the defendants were entitled to their verdict."
The jury gave their verdict for the plaintiff for the full amount claimed.
The defendants appealed, on the ground that there was no case for the jury, on the plaintiff's evidence, of the parcel in question having been stolen by the defendants' servants, or of the said loss by theft having been facilitated by the defendants' negligence; and that the plaintiff should have been nonsuited at the close of his case, as insisted on by the defendants.
Phipson, for the appellants, was stopped by [Jervis, C. J., who asked where was the evidence that any felony had been committed.]
Powell, for the respondent.—This is not a case in which the J defendants ought to have been allowed to appeal. They asked the judge to nonsuit the plaintiff at the trial; and, on his declining to do so, they called witnesses, and took the chance of a verdict. [Jervis, C. J —The complaint is, that the judge left the case to the jury, without any evidence to warrant him in so doing.] The parcel having been shown to have reached the company's hands at Gloucester, and there having been no misdelivery of it at any intermediate station, the irresistible conclusion is that it was stolen. [Cresswell, J.—What evidence was there to justify the judge or the jury in assuming that there had been no misdelivery of the parcel at any intermediate station ?] If there had been any such misdelivery, the company might have shown it. The prima facie case made out on the part of the plaintiff was sufficient to call upon them to do so. That the parcel was placed in the parcel box by Bossom, the porter, is clear,—though it must be conceded that there is no ground for charging him with having stolen it. Then, there was at all events some evidence that the parcel could not have been stolen by a stranger. None but the servants of the company had access to the box in which it was placed: and the presumption is that the box was opened in the ordinary way by means of a key.
Jervis, C. J.—I am of opinion that the judge of the county court erred in two respects. He tells them, that, to entitle the plaintiff to a verdict, they must be satisfied of both of two facts,—that a felony had been committed with the parcel in question by some one of the company's servants,—and that such felony was caused or facilitated by the negligence of the company or their servants: and that, if they were satisfied that the parcel had been stolen by some one of the company's servants, but were not of opinion that such felony was occasioned or facilitated by the negligence of the company, or, if they were of opinion that the parcel had been lost by the negligence of the company, but were not satisfied that a felony had been committed by some one of the company's servants,—in either case the defendants were entitled to their verdict. I think the judge was wrong in leaving the first question to the jury, because there was in my opinion no evidence whatever for them that any felony had been committed by any one of the company's servants. In truth, unless the courts in cases of this sort take upon themselves the duty of deciding, the statute which was intended for the protection of the carrier, will become a dead letter: for, juries always will find felony as against a company. I think it is the duty of the presiding judge to withdraw the question altogether from the jury, and not to allow them an opportunity of finding in favour of the plaintiff in defiance of all evidence. I therefore think the judge of the county court in this case was wrong in leaving it to the jury at all, and that he ought at once to have directed a nonsuit. Further, I think the judge has altogether misconceived the decision of this court in the case of Butt v. The Great Western Railway Company, 11 C. B. 140 (E. C. L. R. vol. 73), because, when the defendants set up a defence under the statute, negligence has nothing to do with the question. The rule is this,—under the statute, felony by a servant is a sufficient answer to the defence set up by the carrier, and negligence has nothing to do with it; and, on the other hand, under the carriers notice, negligence is the sole question, felony is immaterial. Under the statute, felony is an answer; under the notice, negligence. That is the effect of Butt v. The Great Western Railway Company, which was a case of felony permitted or occasioned by the negligence of the defendants. I think therefore the appeal must be allowed.
Cresswell, J.—I am of the same opinion. The statute gives protection to the carrier, unless the loss has occurred by means of felony on the part of the carrier's servants. But there must be reasonable evidence to satisfy the mind of the court and jury that the parcel was so lost. Mr. Powell has urged that the porter Bossom was mainly instrumental in putting the parcel in question into the box of the luggage van : but he very properly admits that there is no reason for thinking that it was stolen by him. There is not a scintilla of evidence of a loss by the felony of any one.
Williams, J.—I entirely concur with the Lord Chief Justice. The whole value of the statute will be destroyed by the courts of law, if evidence like this is to be allowed to go to the jury as establishing a case of felony.
Willes, J.—I am of the same opinion. This is a gross abuse of the rule as to circumstantial evidence. There was no evidence whatever of felony by any servant of the company. I am glad the Lord Chief Justice has explained the case of Butt v. The Great Western Railway Company; for, in the modern text-books,(a) it is cited as a case upon the statute, which in truth it has nothing whatever to do with.
Judgment of nonsuit.

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