The questions in this case are these :

1. "Where a prosecution is maliciously instituted by a husband and wife, the latter acting in the presence and by the direction of the husband, is she personally liable for damages in such action ?

2. Is it competent to show, in such case, for the purpose of rendering her liable, that, in fact, the wife acted of her own motive and not sub potestate viri ?

3. If competent, was there evidence of such independent action in the present case ?

4. Had the General Term power, when they decided the amount found by the referee to be excessive, to order a reduction of the verdict to a sum named by them, as the alternative of a new trial, or was it their duty to have ordered such new trial, to the end that another jury might ascertain the amount of damages ?

The following authorities furnish an answer to the first two questions: 1 Hale’s P. C. 45 to 49; 4 Black. Com. 29; 2 Kent’s Com. 150.

The authorities are clear that, when a tort or a felony of any inferior degree is committed by the wife, in the presence and by the direction of her husband, she is not personally liable. To exempt her from liability, both of these concurrent circumstances must exist — to wit: the presence and the command of her husband. An oifence by his direction, but not in his presence, does not exempt her from liability, nor does his presence, if unaccompanied by his direction. His presence furnishes evidence, and affords a presumption of his direction, but is not conclusive, and the truth may be established by competent evidence.

In the present case the Plaintiff furnished evidence, which was held by the referee, and by the General Term, to justify the finding, that, the wife acted upon her own motive, and although in his presence, was not sub potestate viri.

Assuming this to be so, the Defendants claim that they were not allowed to introduce evidence offered by them of the same character. The Defendant, Lawrence Delany, being under examination, was asked by the Defendants’ counsel this question: *201 “ By whose direction, if any one, did she make that charge ? ” This was objected to by the Plaintiff’s counsel, and rejected by the referee, to which the Defendants excepted. The Defendant might have answered, that it was by his direction, and under his authority, and this would have been evidence to discharge the wife from liability. The same question was subsequently put to the Defendant, Ann Delany, without objection, and she answered that she made it by direction of her husband. The referee, however, did not credit the witness, and found against her on this point. The exclusion of this evidence of the husband, which might have sustained that of the wife, and seriously have influenced the decision of the referee, was an error, for which the judgment must be reversed, and a new trial ordered.

I cannot concur with the action of the General Term in deciding that the amount of damages found by the referee was excessive, and assuming themselves to fix what would be a suitable amount to have been found by him. Excessiveness of damages-is a well-settled ground for reversing a judgment (12 Barb. 492; 19 Barb. 462; 3 Sand. S. C. 11. 19). Where the Court reach the legal conclusion, that an error in that respect has been committed', it is their duty to reverse the judgment, equally as if fraud or Corruption had been established, or incompetent evidence had' been- introduced. There is no rule or provision of law by which Judges at the General Term are authorized to fix the amount of damages properly to be recovered by a person who has suffered from the malicious prosecution of another. Such - a proceeding is in hostility to any principle of .the common law, as well as to our own system of practice and pleadings. If the Court has erred in its decisions, or the jury has erred in its judgment, the matter must be referred to another jury, and this judgment, under better instructions, will give the correct response.

The General Term say that the damages awarded are excessive-; that the referee has evidently blended the damages arising from a former malicious proceeding, by Lawrence Delany alone, with those incurred in which his wife was a party, and order a reversal . ot' the judgment, unless the Plaintiff will reduce his damages *202 to the sum of two hundred and fifty dollars. How can the Court, by any legal process of reasoning, ascertain that just seven hundred and fifty dollars was allowed by the referee for the first malicious proceeding ? They say that that proceeding “ really constituted the only serious injury sustained by the Plaintiff at the hands of the Defendants, either jointly or individually,” and they therefore order a deduction of seven hundred and fifty dollars. Why not order a deduction of nine hundred and fifty dollars ? That, in my judgment, would have been a more appropriate deduction, upon the case as understood by the Court below. But I do not see how any Judge of this Court, or of the Hew York Common Pleas, is entitled to pass judgment upon this question. It is exclusively for the jury, or for .a referee, who, by the consent of the parties, stands in place of, and exercises the same duties, as a jury. In cases where specific items are presented on contract, and can be passed upon, rejecting or sustaining the specific charge, this Court, and the Court below, have been in the habit of directing a reversal or affirmance, subject to the condition that the party shall take their direction upon the questionable item. This I have no doubt is sound practice.

It has never, however, been applied to cases where discretion on the part of the jury was allowed, or where the damages were for a tortious act of the party, or its consequences. Such was the holding of this Court in Moffet v. Sackett (18 N. Y. R. 522).

Judgment should be reversed, and a new trial ordered.

Eeversed.

JOEL'TIFFANY,

State Beporter.