delivered the opinion of the Court:
This was an action of replevin brought before a justice of the peace for the recovery of a heifer. The cause was removed to the Circuit Court by appeal, where a trial was had, when the jury returned a verdict, simply, that they found for the defendant. The court caused the verdict to be entered in this form: “We find the defendant not guilty.” Upon being inquired of by the court, the jury replied, that their verdict was based on the want of proof of a demand, and they had not passed upon the title to the property. Whereupon the plaintiff in error moved the court to send the jury back, and require them to pass upon that issue ; but the court overruled the motion, and entered up a judgment on the verdict.
The verdict of not guilty, being responsive to the issues of non c&pit and non detinei, both admitting property in plaintiff in error, it was erroneous for the court to award a writ of retorno habendo. Such a judgment should not be rendered, unless it appears from the issues tried and the verdict returned that plaintiff is not the owner. Vose v. Hart, 12 Ill. 378; Johnson v. Howe, 2 Gilm. 342; Hanford v. Obrecht, (post.) For these errors the judgment of the court below must be reversed and the cause remanded.
Judgment reversed.