delivered the opinion of the court.

In this case, the motion in arrest of judgment must pre-valí. Trespass cannot be laid to have been committed joint1 ly by husband and wife. If in fact, it be so commit; “d, the *579husband alone must be tried; for the wife is not implicated when acting in the presence of, or by the command of her husband.

The only authority to be found against this doctrine is that to which the court has been referred in this case, viz. 1 Chity, 18; who certainly does say, that “ for assaults and other wrongs, in which two persons may concur, the husband and wife may be sued jointly for the act of both, and the acquittal of the husband will not preclude the plaintiff from recovering. But on an examination of the authorities referred to, it will be found that they do not support the position. The case from Fentris, states that it was an action against husband and wife, but does not state that it was charged to have been committed by both. On the contrary, it furnishes what is to my mind conclusive evidence, that it was not so, i. e. first, that the husband was acquitted, and secondly, it is said that in the case, that the husband ought to have been joined only for conformity, which seems to shew that the act was committed by her alone. The other Herny vs. Guie, from Telverton, 106, which is a case of trespass by the wife, and all the eases, as far as I could procure the books, seem as wide of the position. The case in 2 Bacon, 503, from 2 Lev. 63, when explained by the note, shews clearly that the act was done by the wife.

I feel therefore bound by the long and well established doctrine, that a wife cannot commit a trespass, (so as to be made liable to an action,) in the presence of, or in connex-ion with her husband. In such case, she is supposed to act under his authority, and he alone must be sued. Where the trespass is committed by the wife alone, the husband must be joined in the action; but the declaration must state that it was so committed by the wife. See 1 Chitty 82. — Bacon, title Baron & Feme, Comyn, (same title,) and also the case of Chapman et ux. vs. Hardy & ux. decided in this court.

The action being against both for a trespass committed *580by both, and tbe verdict general, the judgment must be arrested.

The motion is granted.