The opinion
Metcalf, J.
We must overrule these exceptions : Not because trover is the proper action against a bailee, to recover for goods stolen from him, although he may not have used reasonable care to prevent the theft—for it is not; but because he is answerable to the bailor, in such case, in some form of action; and because it does not appear that any objection to the action of trover was taken at the trial, and therefore the instruction excepted to cannot be construed as sanctioning that form of action. It must be construed as an instruction that the defendant was not exempted from liability to pay the plaintiff for the watch, by reason of a theft which he did not take reasonable care to prevent. And the instruction, so construed, was clearly right.
If the objection now insisted on had been made at the trial, the plaintiff might have had leave to amend, by changing the form of action. But the case appears to have been tried on its merits; and the verdict is not to be set aside on a merely technical point afterwards raised for the first time.
Besides; it does not appear in the exceptions, unless by inference from the instruction complained of, that any evidence *119 was given by the defendant, that the watch was stolen from him ; and therefore, in strictness, the instruction might be regarded as given on a merely abstract point of law, and though erroneous, yet not the subject of exception. But we do not decide the case on that ground.
That an objection to the form of action, not taken at the trial, cannot be taken on a bill of exceptions, was decided in Emmons v. Lord, 6 Shepley, 351. Exceptions overruled.