— If the plaintiff seeks to draw an argument from the fact, that the record entry states that the court ordered that the plaintiff be non-suited, this will fail him ; for, all of the record being taken together, it shows that the order was made upon his motion ; and it is manifest that it was, in effect, a voluntary non-suit. He seeks to make it appear that the court compelled the non-suit, whilst in fact the legal effect of the proceeding can be none other than that of the party voluntarily taking the non-suit, which he had the power to do, up to that precise point, in the course of the trial.
' The record entry of the finding of the court, that the right of property was in the defendant, has no weight in the determination of the question before us, for that being-unnecessary and unauthorized, has no legal force.
The only question for this court to answer, is, whether the judgment below should award a return of the proper*39ty; and tbe answer is, tbat tbe judgment is correct in this respect. At tbe common law, judgment for tbe defendant was for a return, and bis damages and costs. 1 Sel. N. P., 378, 379; 1 Chit. Pl., 162; Smith v. Auraud, 10 S. & R., 92; Philips v. Harris, 3 J. J. Mar., 121. The nature of tbe case, also, dictates such a judgment. In replevin, tbe plaintiff tabes the property from tbe possession of another, under a claim of right to either tbe possession or tbe property itself; tbat is, tbe title or ownership — or to both of these; and it follows, as of course, that, if be fails to establish tbe right set up, tbe property should be returned to him from whom it was taken; and tbe condition of tbe bond to be given by tbe plaintiff, under section 1996, Code, contemplates a judgment of this kind.
Tbe plaintiff misconceives, probably from regarding tbe statute provisions as the whole of tbe law of replevin, whilst, in truth, tbe body and substance of it lies in tbe common law, and tbe statute contains a few special provisions only, upon tbe subject, which are to be understood with a reference to tbe common law.
Tbe judgment of tbe district court is affirmed.