The opinion of the court was delivered by
Isham, J.This case is brought here on a report of referees, on which the county court rendered judgment pro forma for the plaintiff. The question has arisen whether under the replication of de injuria to the plea of son assault demesne evidence can be received and a recovery had for an excessive battery. This re*221plication is considered merely as a simple denial of the facts stated in the plea, and the evidence should be confined to the facts there stated, as they only are put in issue by the pleadings.
Under the English practice and by a uniform course of decisions in their courts there can be no doubt that evidence of an excessive battery could not be received under this issue. A new assignment would be necessary, making the excessive battery the substantive ground of recovery, as they consider the only matter put in issue under such a state of pleading, is the inquiry, "Who first commenced the assault ?
A different rule has however been adopted in Massachusetts, 15 Mass. Rep. 365, and in Hew Hampshire, 2 N. H. Rep. 347; and also in this State in the case of Elliot v. Kilburn, 2 Vt. Rep. 474. In these last cases, the courts held the averment “that the “ defendant used no greater force than was necessary for his de- “ fense,” to be the material part put in issue by the replication, and consequently evidence showing that more force was used, and that an excessive battery was committed, was properly admissible as being within the issue formed. The pleadings in this case are similar to those in. the 2d of Yt. and the question now presented was there considered and decided, and we are not at liberty to treat the question as open for further consideration. So far therefore as the admission of testimony under this issue is concerned, there is no reason for reversing the judgment of the county court.
But from an examination of this case, as it appears from the exceptions and the report of referees, we think a rehearing must be had in. the case, for the reason, that no facts are found upon which a judgment can be rendered under the issue formed by the pleadings. The pleadings present two questions of fact to be tried and decided. Hid the plaintiff commit the first assault, and if so, did the defendant use any more force than was necessary in his defense?
On these questions the referees have made a special report of the testimony which they admitted and heard, and from which they should have found the facts whether the first assault was made by the plaintiff, and whether the defendant’s battery was excessive. But these facts are not found in the case. The referees have expressed no opinion on the subject and have drawn no conclusions from the testimony whatever. There is no ques*222tion of law arising in the case. The referees, after reporting the testimony, say, if the court are of opinion that the defendant is guilty then they find for the plaintiff, otherwise for the defendant. Now when no question of law exists, it is not for this court to say whether the defendant is guilty or not guilty. That is a question exclusively to be found by the referees or the county court. It has uniformly been held that this court can try no question that is to be ascertained by weighing evidence or drawing inferences therefrom. It is the duty of this court only to decide upon such legal questions as may arise upon facts previously ascertained and found to be true.
Possibly the difficulty might have been avoided if the county court had drawn their inferences from the testimony and facts reported by the referees, or had they tried the case on the report and rendered a judgment thereon, as the facts might have been considered as impliedly found in such judgment. But the questions not having been considered in either place, and the judgment being ■pro forma merely, we do not feel at liberty to give such an effect to the judgment. The judgment of the county court must be'reversed, so that on another trial, the facts involved in the issue of this case, may be found.