delivered the opinion of the court:

This action is brought to recover for “damages for breaking, or causing to be broken, and otherwise injuring a two-horse hack, the property of the plaintiff.” This is the language of the warrant.

The case was a hiring by defendants of plaintiff’s hack to go to a point some ten or twelve miles. The hack was overturned, broken, and left by the defendants, so that plaintiff had to send for it, the parties not returning it.' On the trial it seems plaintiff claimed, in argument, damages for failure to return the hack.- His honor charged the jury substantially that this depended on the question whether they had used the hack with the prudence and care required by the law, as he had correctly given it to them. In this he w'as probably in error, as the parties would not be excused from returning the property because it had been innocently injured, but were bound to return it to the bailor. See Waite, Act. and Defenses, Yol. 8, 623. Plaintiff can get no benefit, however, from this error, as he has *93not sued for or charged any wrong done him by not returning the back. No such-issue was presented. The jury were not sworn to try the' question, and therefore it was immaterial, and no .cause for reversal. Let the judgment be affirmed.