
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Chapman and Wife v. Hardy.
    Husband and wife cannot join for the battery of both; the battery of the husband is a distinct cause of action.
    Motion in arrest of judgment. The action was trespass, for assaulting and beating the plaintiffs, to their damage.
    Verdict for plaintiffs, in Richland district, before Trezevant, J.
    In support of the motion, Nott cited 2 Com. Dig. 107, 8. 1 Com. Dig. 148,147. 1 Esp. Dig. 316. 2 Com. Dig. 111. 2 Wils. 227. 2 Cro. 573, 655. 2 Ld. Raym. 1208. Cro. Ja. 655. Hard. 166. The wife cannot join in an action for the battery of her husband. 1 Vent. 328. 2 Ventris, 29. Where the wife cannot have an action for the' same cause, if she survive her husband, the action shall be by the husband alone. The battery of the husband is a distinct cause of action, in which the- wife has no interest, and for which she cannot be joined in the action. For the battery of the wife, she ought, to join in the action, and the damages should be laid ad damnum ipsorum, 1st, because the husband is damnified by being put to expense ; and 2d, because the action and damages survive to the wife, to whom the injury has been done. In this case, if separate damages had been assessed, the husband might release his damages, and the judgment might be entered up against the defendant for the damages, for the battery of the wife ; but as entire damages have been assessed, this cannot be done, and the judgment must be arrested.
    Clifton, E contra,
    
    cited 8 Dali. 54, 120.
   Brevard, J.,

declared the resolution of the whole court, Wilds, J., absent. Husband and wife cannot join for the battery of both, The battery of the husband is a distinct cause of action, in which the wife has no interest which can survive to her, and in which she cannot join. The objection maybe taken advantage of by plea in abatement, by demurrer; or after verdict, by motion in arrest of judgment. See Theol. Dig. s. 10, c. 15. 1 Com. Dig. Abatement. G. 4. 2 Com. Dig. Baron and Feme, Y.

Judgment arrested.  