
    THORNTON v. SPRAGUE.
    Verdict — issues—immaterial issue — non cepit.
    
    The finding of the jury should follow the issues and respond to all of them, that are material.
    The omission to find an immaterial issue is of no consequence.
    
      Mon cepit in replevin is immaterial under our statute.
    The court may mould the verdict of a jury to form.
    Error to the Common Pleas. Thornton replevied from Sprague a horse and bridle. Sprague pleaded 1. non cepit — 2. property in him and one J. W. Wing. Replication, property in the plaintiff. Verdict returned in these words ‘ the jury find for the defendant, the value of the property to be $55 — the right of property in the defendant, damage $40 — damage including the value of the property $95.’ The defendant moved the court to amend the verdict and to insert after the word defendant where it secondly occurs the words ‘ and Josiah W. Wing.’ The court finding that the claims of the parties and the evidence on the trial, was that the property was in Sprague and Wing jointly, ordered the verdict entered as follows, viz. ‘We the jury find that the defendant did not detain the property of the plaintiff — that the property was in the defendant and Wing and of the value of $55, and therefore find for the defendant to recover of the plaintiff his damages, etc. which they assess, including the value of the property at $95.’ Judgment was entered on this.
    The errors assigned are,
    1. The verdict non detinet is immaterial, not finding the issue.
    2. The jury could not lawfully assess the damages.
    3. The court had no right to put. the verdict in form.
    Bell, for the plaintiff in error.
    Hamilton, contra.
   Wood, J.

The finding should follow the issues and respond to all that are material, and a failure is fatal: (5 O. R. 108.) But this first issue of non cepit is immaterial under our law and has been so adjudged. The issue being of no moment the finding upon it secures no legal consequence — the first objection therefore fails.

The statute (29 O. L. 129) expressly requires of the jury in replevin to assess the damages — including the value if they find for the defendant. The objection has no weight under our law, whatever it might have under that of some other state.

The remaining question calls upon us to determine whether the court taking the verdict has power to reduce it to form? This Court has expressly decided this point in several cases: (2 O. R. 32; 3 O. R. 384; 5 O. R. 238, 260.) The act of the court appears to us nothing but reducing the verdict to form, and to be justified. The finding on the second issue is sufficient to warrant the judgment.  