#### Benjamin Goddard et ux., appellants, v. Benjamin F. Hart et ux., appellees.

Appeal from Stephenson.

Oil the trial of a joint action of trespass against a husband and wife for an assault, the Court admitted evidence of an assault by the husband alone, and refused to instruct the jury that the plaintiff could not recover damages for such separate assault: Held, that the decisions were clearly erroneous.

Trespass for an assault, brought by the appellees against the appellants in the Stephenson Circuit Court, and heard before the Hon. Thomas C. Browne and a jury at the August *96term, 1846, when a verdict was rendered in favor of the plaintiffs below for the sum of $534-16 damages.

All the facts necessary to the determination of this case are concisely stated by the Court in the Opinion.

S. T. Logan, for the appellants.

0. Peters, for the appellees.

The Opinion of the Court was delivered by

Treat, C. J.

This was a joint action against husband and wife for an assault. On the trial, the Court admitted evidence of an assault by the husband, in the commission of which the wife did not in any manner participate; and also refused to instruct the jury, that the plaintiffs could not recover damages for the separate assault by the husband. These decisions were clearly erroneous. The recovery in this case could not be pleaded in bar of an action against the husband for the separate assault.

The judgment of the Circuit Court is reversed with costs; and the cause is remanded for further proceedings.

Judgment reversed.