
    Lewisburg.
    Roadcap & wife v. Sipe.
    1849. July Term.
    
    ( Absent Cabell, P. and Brooke, J. )
    1. A joint action of trespass, assault and battery, lies against husband and wife for an assault committed conjointly by both.
    
      2. In a joint action of assault and battery against husband and wife for a joint assault, there may be a verdict and judgment against the one, and in favour of the other.
    This was an action of trespass, assault and battery, in the Circuit court of Rockingham county, by Elizabeth Sipe, an infant, by her next friend, against Stephen Roadcap and Mary his wife. The declaration charged a joint assault and battery by the defendants upon the plaintiff. The defendants appeared and demurred to the declaration ; and also pleaded not guilty, and a special plea that the plaintiff was the apprentice of the defendants, and that for her misbehaviour and disobedience they moderately corrected her. The plaintiff joined in the demurrer, and took issue on the pleas.
    When the cause came on for trial, the Court overruled the demurrer; and the cause then coming on before the jury, the plaintiff in order to support the issues on her part, introduced evidence tending to prove that the assault and battery complained of in the declaration, had been committed by the male defendant, and also evidence tending to prove that said assault and battery was committed in the presence of the female defendant; and that she had said that the plaintiff had been beaten by the male defendant, and that she had not received a blow too much. Thereupon, and after all the evidence on both sides had been introduced, the defendants by their counsel, moved the Court to instruct the jury: That if they are satisfied from the evidence, that the assault and battery alleged in the declaration, was committed and done by the defendant Stephen Roadcap alone, and without the actual co-operation of the female defendant, then that the evidence does not sustain the action, and the jury should find for the defendants. This instruction the Court refused to give, and the defendants excepted.
    There was a verdict in favour of the plaintiff against both defendants, for 200 dollars damages, on which the Court entered up a judgment. And thereupon the defendants applied to this Court for a supersedeas, which was awarded.
    
      Fultz, for the appellants.
    The Court below erred in overruling the demurrer to the declaration. The declaration charges a joint assault and battery by the husband and wife; and in this unites two separate and distinct causes of action. In such a case the action should have been against the husband for his assault and battery, and there should have been another action against the husband and wife for the assault and battery of the wife. 2 Bac. Abr. Baron & Feme, letter L. p. 62; Swithin & wife v. Vincent & wife, 2 Wils. R. 227; Anonymous, Dyer’s R. 19 a ; May v. House & wife, 2 Chitty’s R. 697; Edwards & wife v. Davis, 16 John. R. 281; Hasbrouck v. Weaver, 10 Id. 256; 1 Wheat. Selw. 297; Comyn’s Dig. Baron & Feme, letter Y.
    There is a wide difference between the joint acts of husband and wife, and those of cotrespassers. In the latter case each has a separate legal existence, and is accountable for his own acts, whilst there is no legal accountability attached to the wife as a separate individual. She must stand with her husband, and can be amenable to the law only through him. Her legal existence is merged in his; and for all acts done by her in the presence of her husband he alone is responsible, because the law presumed they were done by his coercion. Rex v. Knight & wife, 11 Eng. C. L. R. 335.
    
      2d. The Court below erred in refusing to give the instruction asked for by the defendants. If an action can be maintained against husband and wife for a joint assault, it can only be by proving the joint assault as charged; and if the joint assault is not proved, the action must fail. The law does not recognize husband and wife as joint trespassers. A recovery cannot be had against one, whilst there is a judgment in favour of the other. 2 Saund. Plead, and Evi. 88; 1 Wheat. Selw. 296-7.
    In this case the appellants have not been treated as cotrespassers, but a joint judgment has been rendered against them, whilst it is very clear from the evidence, that only one of them could, with any propriety, have been found guilty. And this error in the verdict of the jury resulted from the refusal of the Court below to give the instruction asked for by the appellants.
    Stuart, for the appellee.
    This case presents substantially but a single point, viz : Can a joint action of assault and battery be brought against husband and wife for a joint assault and battery committed by them?
    There are torts for which no two persons can be jointly sued, because from their nature, they cannot be jointly committed by two. Slander is a case of this kind, because two persons cannot unite in uttering verbal slander, and, therefore, two cannot be jointly sued for it.
    The cases referred to by appellants’ counsel will be found to be either cases of this character, or actions ex contractu, or criminal proceedings. They consequently have no analogy to, and can throw no light upon, this case.
    Chitty, in his Pleadings, vol. 1st, p. 105, says: “ For assaults or trespasses which may in legal contemplation be committed by two persons conjointly, and for which several persons may be sued jointly, the husband and wife may be sued jointly for the act of both.”
    In Vine v. Saunders, 33 Eng. C. L. R. 290, this precise point was considered and adjudged. Justices Tindal, Vaughan, Bosanquet and Coltman, unanimously held that “ husband and wife may be jointly sued in trespass for their joint act.” The authorities and the reasons by which they are sustained are there fully reviewed and explained.
    In the old edition of Chitty on Pleading 79-80, it is said: “ For assaults or other wrongs in which two persons may concur, husband and wife may be sued jointly for the acts of both, and the acquittal of the husband will not bar the plaintiff from recovering.”
    As to the suggestion, that the wife cannot be sued without her actual co-operation, (meaning, I suppose, physical participation,) in the trespass, although she may be present advising, inciting and abetting, I have only to refer the Court to the familiar doctrine, that all who advise or assist in the commission of a trespass are principals. Where the acts are of such a character as to make any third person a principal, they will make the wife a principal. The only modification of the proposition is, that the prior or subsequent assent will not make the wife a trespasser,—cotemporaneous assent and assistance will.
   Daniel, J.

The petition in this case assigns for causes of error: First, that the Court erred in overruling the general demurrer to the declaration; and secondly, that the Court erred in refusing to give certain instructions asked for by the plaintiffs in error.

The declaration charges a joint assault upon the defendant in error by the plaintiffs ; and the question presented by the demurrer is, whether a joint action may be maintained against husband and wife for an assault and battery committed conjointly by both. It is insisted by the counsel for the appellants, that the dedaration improperly unites two separate and distinct causes of action; that an action ought to have been brought against the husband alone for the assault committed by him, and another against the husband and wife for the assault committed by her ; and that in the latter action, the declaration should have charged the assault to have been committed by her. In support of this position, authorities are cited, shewing that if slander be spoken by husband and wife, there must be separate actions) one against the husband only, for the slander spoken by him, and the other against the husband and wife, for the slander spoken by her.

These authorities, it will be found, furnish not the rule, but the exceptions to it.

There are torts which it would be improper to charge in a declaration, as having been committed conjointly by husband and wife ; and a general demurrer to a declaration liable to such an objection would be sustained. Of these, slander is an example. In the case of slander, however, the objection has its foundation, not in the relation of the parties charged with the tort, to wit, that of husband and wife, but in the nature of the tort. There can be no joint utterance of a slander by two or more persons, and consequently there cannot be a joint action for such supposed tort, whether charged to have been committed by husband and wife, or any other two persons not standing to each other in that relation. But for assaults and trespasses which may, in legal contemplation, be committed by two persons conjointly, and for which several persons may be jointly sued, the husband and wife may be sued jointly for the act of both. 1 Chitty’s Pl. 105; Vine v. Saunders & wife, 33 Eng. C. L. R. 290. It seems, therefore, that the demurrer to the declaration was properly overruled.

The bill of exceptions states that the plaintiff in support of the issues on her part, introduced evidence tending to prove that the assaults and batteries complained of in the declaration, had been committed by the male defendant, and also evidence tending to prove that said assaults and batteries were committed in the presence of the female defendant; and that she had said that the plaintiff had been beaten by the male defendant, and had not received a blow too much; and that thereupon, and after all the evidence had been adduced on both sides, the counsel for the defendants moved the Court to instruct the jury, that if they were satisfied, from the evidence, that the assaults and batteries alleged in the declaration, were committed by the male defendant alone, and without the actual co-operation of the female defendant, then that the evidence did not sustain the action, and the jury should find for the defendants. Which instructions the Court refused to give.

Whether the Court erred in refusing to give the instructions, depends on the answer to be given to the question, whether upon the general issue in a joint action of trespass, assault and battery, against husband and wife, for wrongs charged to have been committed conjointly by both, it is competent for the jury to find one guilty, and the other not.

The case of Drury v. Dennis, Yelverton 105, would seem to countenance the proposition that when a joint assault is alleged to have been committed by husband and wife, the action must fail unless both be proven to have concurred in the assault. The current of authorities is, however, the other way. In the case of Hare v. White & wife, 12 Mod. R. 20, where upon general issue, the husband was acquitted and the wife found guilty, the Court said there was no diversity in the case of baron and feme, and where trespass is against any other two, and one of them is found guilty. See also 3 Croke’s R. 203; and in 1 Showers 350, the general proposition is asserted, that in assault and battery against husband and wife, they may be found respectively guilty or not guilty. 1 Ventris 93, accord. The question whether or no the presence of the wife at the time of the assault, and the declaration subsequently made by her, were sufficient in law to charge her as a joint trespasser with her husband, did not arise on the instructions asked for; and no motion was made to set aside the verdict on the ground that it was contrary to the evidence. If the instructions asked for had been given, they would have justified a verdict in favour of both defendants, though the jury might have been satisfied of the guilt of the husband. It seems, therefore, that the instructions asked for were too broad, and were properly refused. I see no error in the opinion of the Court, and think that the judgment ought to be affirmed.

The other Judges concurred in Judge Daniel’s opinion.

Judgment affirmed.  