
    Andrew Park v. Ferdinand Hopkins.
    A plea of former recovery by plaintiff, in a joint action against defendant and another, for the same injury, is insufficient without an averment of satisfaction.
    To an action on the case defendant pleaded a former recovery against himself and wife for the same injury: Held bad upon demurrer. An action cannot be maintained against husband and wife for an injury, for which an action would lie against the husband alone; and therefore the injuries complained of in the two actions could not be the same.
    Husband and wife cannot in law commit a joint tort. If the act is done by the wife in the presence of the husband, or with his consent, it is his act, and he alone is responsible : To sustain the action against the. husband and wife, it must appear that the wrong complained of was the separate act of the wife.
    Tried before Mr. Justice Earle, at Chester, Spring Terra, 1831.
    This was an action similar to the last, but brought against the father of plaintiff’s wife, alone. When the verdict in the former case had been entered, the defendant, by leave of the Court, pleaded it in bar puis darrein continuance ; but on demurrer the plea was overruled by the presiding Judge. The defendant now moved to reverse the judgment of the Circuit-Court.
    Clarke, and Williams, for the motion.
    Thomson, aud Gregg, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

For a joint trespass, or other injury ex delicto, which may legally arise from the joint act of two or more, the party injured has the right to sue all the wrong doers jointly, or severally, as he may think proper. If he brings separate actions against each of them, a recovery against and satisfaction of the damages by one, will upon the payment of the costs in the other cases, bar a further recovery in them. Hawkins v. Hatton and wife, 1 N. & M. 318. Livingston v. Bishop, 1 Johns. 290. In the case before us, if the injury complained of, could in legál contemplation have resulted from the joint act of the husband and wife; the plea would have been bad, as it did not aver satisfaction of the recovery had in the case against the husband and wife, and a payment, or tender of the costs in this case.

But, in legal contemplation, the husband and wife could not jointly do any act, for which the plaintiff could maintain an action against them. If the act of the wife was done in the presence, or by the consent of the husband, it would be held to be his act, and for it, he alone is liable. To sustain the action against husband and wife, it must appear that the wrong, complained of, was the separate act of the wife. The recovery in the former case then, could not have been for the joint act of husband and wife, but for her own wrong. If the plaintiff have any cause.of action against the husband, it must be for his own and not his wife’s wrongful act.

The demurrer was properly sustained; and the motion to reverse .the decision of the Circuit Judge is refused.  