¶1delivered the opinion of the court:
¶2This was an action of replevin, brought in the La Salle County Court, by the plaintiffs in error, against the defendant in error, for certain agricultural implements, stoves and pipe, and household furniture, and a lot of sugar cane seed.
¶3The pleas were: 1. Non detinet. 2. Not the property of the plaintiffs, and 3. Property in defendant, on which issues were joined. During the trial, a written contract between the parties was introduced in evidence, whereupon, the defendant’s counsel entered a motion to dismiss the suit, for the reason, that it appeared from the contract, that the plaintiffs and defendant were partners. The court sustained the motion, and this ruling is the only point in the case.
¶4It appears, issues were made up on the questions of detainer, property in the plaintiffs, and property in the defendant. These issues, the jury were sworn to try, and if, in trying them, the fact of a partnership was evolved, that would, perhaps, have determined the first issue for the defendant. The evidence of partnership, was not evidence for the court alone, but for the jury, under the issues, and the court had no right to take the consideration of that fact, from the jury. They were quite competent to determine it for themselves, and if found by them to be true, their, verdict would probably be for the defendant.
¶5There was manifest error in thus talcing the cause from the jury, and deciding on evidence which it was the province of the jury to weigh and decide upon, and which, on being decided by them, in a particular way, would have decided the case. Who owned the property was another issue. If it was partnership property, and so found by the jury, their verdict would have been for the defendant. The jury had the right to decide the case on the evidence under the issues made up.
¶6It might be, however, that the plaintiffs had the exclusive right to the immediate possession of the property, and so had a verdict.
¶7For the error assigned, the judgment is reversed and the cause remanded.
¶8Reversed and remanded.