The opinion of the court was delivered by

This is an action on book, in which the plaintiffs seek to recover for liquor sold by them in New York, to the defendant, and sent to him at Rutland, in this state, at the request of the defendant. No question is made as to the amount the plaintiff should recover, if, upon the facts reported, they can sustain the action. The defense set up to the plaintiffs’ right of recovery is, that the defendant was engaged in the business of selling intoxicating liquors in this state, contrary to law; that he bought the liquors of the plaintiffs, with the intention of selling the same contrary to law ; and that the plaintiffs sold the liquors to defendant, knowing that they were to be used for an unlawful purpose ; and' thereby it is claimed that the plaintiffs aided and abetted the defendant in his violation of the laws of this state.

The decision of the question, whether the plaintiffs were so far implicated in, or connected with, the unlawful traffic in which the defendant admits he was engaged, as to bar their right of recovery, would depend upon the facts which the auditor should have found from the testimony in the case, and reported to the court. The case shows that the plaintiffs, by the direction of the defendant, put secret marks upon the casks of liquor ; but it does not appear that the auditor found for what purpose the casks were thus marked. Some of the testimony of both parties tending to prove the material point in issue, is detailed in the au*348ditor’s report; but the report does not show what facts he found from the testimony, nor does it show that he found any facts decisive of the question in controversy. From the report, it is a matter of inference or conjecture merely, as to the facts the auditor found, and no question of law is raised as to the validity of the defense set up. It is well settled that, in order properly to raise questions of law, the facts in reference to each litigated point, should be found by the auditor, and set fqrth in his report; and where the action comes into this court by exceptions, no questions can be revised, except questions of law arising, either upon the facts reported by the auditor, or found and placed upon the record by the county court,, We think the defendant was not entitled to judgment. The judgment of the county court is reversed, and, at the request of the defendant, the case is remanded to the county court, to enable the auditor to find and report the facts.