The president pronounced the court’s opinion, that, as it is stated in the bill of exceptions to have been proved, in this case, that the plaintiff in error opened certain packages and casks, and took therefrom a part of their contents, that act might have amounted to a larceny, although the said packages and casks were delivered to him as a common carrier, had it been also stated, and proved, that the said contents were by him feloniously carried away; but as it is only stated to have been proved that he converted the same to his own use, which does not necessarily imply a felony, the court is of opinion (without deciding whether such larceny'would have merged the civil injury, or not,) that the offence proved at the trial, and stated in the declaration, only amounted to a trespass and conversion ; and, consequently, that the action well lay ; and that upon this point, there is no error in the judgments of the said County Court: but the court is of opinion that the plea of the act of limitations well applied to this case, being one of a mere bailment and conversion; and that there is error in the judgment of both courts in having held the contrary.
Both judgments reversed ; and cause remanded to the superior court of law, and from thence to the county court, in order to have a new trial therein, on which no such instruction as that last mentioned is to be given.