
    Mosley vs. Matthews.
    PRACTICE. Trial — want of plea and issue not aided by verdict. When there is no plea and no issue joined between the parties, the court has no power to em-pannel a jury; and if it do, and a verdict be found and judgment pronounced thereupon, the whole proceedings are null. The want of a similiter, but not of a plea, will be aided after verdict.
    This was an action of trespass commenced in Warren circuit court, by Matthews against Mosely, on the 13th of July, 1831. The declaration, which was entitled as of January Term, 1832, charged an assault and battery, committed by shooting with a pistol. At the same term, the defendant pleaded not guilty, upon which plea issue was joined. The cause was continued till January Term, 1835, when on motion of the defendant, he was permitted to withdraw his plea of not guilty, and file the plea of son assault demesne; and the plaintiffs had two months to file his replication, and the defendant till the fourth Monday of June, to make up the issue.
    Under this leave, the defendant filed two pleas; in one al-ledging that the plaintiff, and in the other that the - plaintiff, “with divers other persons,” &c,, made the first assault.
    The plaintiff replied, that a state’s warrant against the defendant had been issued by a justice of Warren, and placed in the hands of a constable, who summoned the plaintiff to assist him to execute it; that the defendant resisted the execution of the warrant; and the plaintiff, for the purpose of executing it, did assault the defendant, which was the same, &c.; and therefore the defendant of bis own wrong, and without the cause assigned in his pleas, committed the trespass in the declaration mentioned; and this, &c., wherefore, &c.
    To this replication the defendant demurred generally; and at January Term, 1836, the plaintiff moved the court to take up the demurrer for argument; but the defendant not being present, the court ordered the argument to stand over till the next term, so as not to delay the trial.
    Febuary 1.
    Febuary 4.
    At May Term, 1836, it appearing that both parties resided in that part of Coffee county which had been taken from Warren, the cause was transferred to the former; and there, at May Term, 1837, without any disposition having been made of the demurrer, — and indeed, without any issue of fact being joined between the parties, the cause was submitted to a jury, who heard evidence, and gave a verdict for the plaintiff, and assessed his damages at 300 dollars; and the court, his Honor Judge Andeeson presiding, pronounced judgment thereupon, from which the defendant appealed in error.
    Taul, for the plaintiff in error.
    Ready, for the defendant.
   Turley, J.

delivered the opinion of the court.

This is an action of trespass with force and arms, brought by Kincheon Matthews against Jesse W. Mosley, to recover damages for an assault and battery committed by the defendant upon him, by shooting him. To this action the defendant filed the plea of not guilty, upon which issue was taken; but at a subsequent term he obtained leave to withdraw this plea, and file a special plea of son assault demesne, to which the plaintiff specially replied, what in substance is the replication ude injuria sua pmpria absque tali causa’'’ — to this replication the defendant demurred.

The cause was continued from term to term, till May, 1836, when it was submitted to a jury in the circuit court of Coffee county, who were sworn to try the issues joined between the parties, and who returned a verdict, that they found the issues in favor of the plaintiff and assessed his damages to the sum of $300, upon which verdict the court gave judgment for the plaintiff, from which the defendant pro secuted an appeal to this court.

Can the judgment of the circuit court be sustained?

We think not — there is no issue for a jury to try. The court therefore had no power to empannel a jury, and any judgment rendered upon their verdict is a nullity.

It is true, that this court has often said, that the want of a similiter will be aided after verdict, but to say, that the want of a plea or issue tendered would be aided by the verdict, would be, to go further than has ever been asked, or can, with a due regard to the preservation of forms of practice be reasonably expected.

But it is contended, that although we must reverse the judgment, yet we can, by virtue of the power given us to render such judgment as the court below ought to have rendered, now determine the question arising upon the demur-, ref, and give, final judgment between the parties.

We do not think so. Holding as we do, that the verdict of the jury, and judgment thereon, is a nullity, the case of course stands, as if no such step had been taken in it; and the demurrer not having been disposed of, there has been no final judgment in the court below, and the case, for this cause, must be remanded. But even supposing that the judgment of the circuit court could be considered as final, still no judgment could be given here, because no damages have been assessed, which can be recognized by the court as the basis of a judgment, there having been no jury legally impanneled by the court to ascertain the same.

We therefore remand the case to the circuit court of Coffee county, with instructions to determine the questions arising upon the demurrer to the replication; and if they shoud be decided in favor of the plaintiff, then to impannel a jury of inquiry to assess the damages, unless upon application amendments shall be allowed, by which an issue or issues of fact may be made up, upon the merits of the case.  