38 Ill. 493 | Ill. | 1865
delivered the opinion of the Court:
This was an action of replevin. The defendant pleaded four pleas : 1st. non cepit; 2d. property in himself; 3d. property in one Zalmon Hanford, and the 4th. justified the taking by the defendant, as sheriff, under an execution against Zalmon Hanford. Issues were made up on these pleas, and the jury on the trial merely found a verdict of not guilty, upon which the court rendered judgment and ordered a return of the property.
In Vose v. Hart, 12 Ill. 378, the court held that where there was only a plea of non cepit, and a verdict of not guilty, it was error to award a retorno habendo. That case is decisive of this. It is impossible to apply the finding of the jury to any issue except that made under the plea of non cepit, and the case is in no wise distinguishable, in principle, from the one just cited. There being no other issue found, the record presents the same question that it would had no other plea been pleaded.
Judgment reversed and cause remanded.
Judgment reversed.
