delivered the opinion of this court.

From the evidence in the cause, we should infer, that the carriage, for the repairs of which this suit has been brought, was taken by Mitchell to the shop of the plaintiff for repair; the account for repairs, having been originally charged to Mitchell, by the plaintiff. There is evidence to show, that the property of the carriage was in the defendants, but the evidence does not conclusively show, under what circumstances Mitchell came into possession thereof. He is proved, at one period of time, to have been the driver of a carriage for the defendants, but whether at the particular period of the repairs, is uncertain. It is also in evidence, that Mitchell had repairs of the same carriage done at several times, and that defendants paid for them, and that Mitchell had contracted with Bishop for the repair of a carriage, but whether of the one in question, *392is not known. It is also in proof, that the defendants saw the carriage while the repairs were being made, at several times ; and it is further proved, that they were in possession of the carriage in the year 1838, having brought it to the shop of Bishop to repair, some time during that year; how long after the repairs charged in the account filed in this case, does not appear.

Under all the evidence in the case, we think it was for the jury to determine, whether the repairs were made by authority of the defendants. If indeed, they were made for the benefit of the defendants, and with their knowledge and approbation, they would be clearly liable, but whether they were so made, was surely a question which could be determined by the jury alone. The repairs may have enured to the benefit of Mitchell, unless, in regard to the carriage, he was in the condition of an agent or servant of the defendants. In what manner he was in possession of the carriage, whether as driver, servant, or agent of the defendants, or otherwise, was a fact to be found by the jury.

We therefore think, that the court below were in error in their first instruction to the jury in the fourth exception, which imperatively declared the right of the plaintiff to recover, upon the finding of the fact of property in the defendants, and that the repairs were made with their knowledge and approbation.

But, we think the court were right In their second instruction to the jury in the same exception : if the jury found, in addition to the facts referred to in the first prayer, the additional fact, that Mitchell was the driver of the defendants, when he took (he carriage for repair, they would be clearly liable for such repairs. Mitchell, in this aspect of the case, might and ought, in the absence of evidence to the contrary, to be considered as the servant of the defendants, and if such servant took his carriage to repair, and repairs were made, and known and approved by the defendants, the verdict, in that event, should have been for the plaintiff.

We think the court were right in rejecting the account of the defendants in the third exception, against John Mitchell,. *393as evidence for the purposes for which it was offered. If it could be admissible to prove, that the bill of sale was in fact a mortgage, and the character of the evidence was such as could be received, we perceive nothing in the account which is sufficient to prove such fact. The other purposes for which it was offered, were not insisted upon in the argument, nor if they had been, do we think it could have been received.

The first exception, we considered as having been abandoned by the appellants.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.