
    SISCO v. CHEENEY AND WIFE.
    Assault and battery — husband and wife — misjoinder—demurrer—arrest—writ of error.
    Wiiere a husband and wife jointly commit an assault and battery, the law regards the act his alone so faras it concerns the civil injury, and he should be sued alone.
    If a joint suit is brought against a man and his wife fora tort which they cannot in the eye of the law jointly commit, the suit /ails; and the defendant may avail himself of the objection either upon demurrer, by motion in arrest of judgment, or by writ of error.
    Assault and battery by the defendants jointly. Pleas — not guilty, and a justification in defence of the wife, and also in defence of their son.
    
      Morehead and Gatlay, for the defendants,
    objected to a recovery, because the battery complained of was joint by the husband and wife, and the battery proved was by the wife alone, separate from her husband. 1 Wh. Sel. 25, 6.
    
      Benham, contra.
   Wright, J.

If the tort complained of were by the husband and wife jointly, suit should be against the husband alone, for the law intends the whole his act. 2 Com. Dig. 111. If the action be against husband and wife jointly for a tort they could not jointly commit, or against the husband alone for the separate act of the wife, and the objection appear on the face of the pleadings, the defendant may demur, move in arrest of judgment, or bring his writ of error. 2 Com. Dig. 111. 1 Ch.Pl. 80. So if the action be joint, and the husband be found not guilty, the action fails. Brownl. 209, Yelv. 106. If a verdict is taken, therefore, what good would result to the plaintiff, if we must arrest the judgment upon it?

Verdict and judgment for the defendant.  