James Wright v. James Kerr and wife

ALLEGHENY COUNTY. December Term, 1791. James Wright v. James Kerr and wife. White v. Eldridge, 1 Ld. Ray. 443, 1 Bac. abr. 307. THIS was an action of tresspass quare clausam fregit, against a husband and wife, jointly, for takingone hundred buihels of com, &c. Ross, for the defendants, objected to any testimony against the husband; 1, because the writ being against the two, as husband and wife, is to be considered in the usual way of joining the husband with the wife, for forms sake, and for his interest; and 2, because a wife committing a trespass in the presence of her husband, is not answerable, acting by compulsion. Brackenridge and Carson, for the plaintiff: Tresspass lies against husband and wife, for a joint tresspass by both. [MAJORITY] President. This is not an action against husband and wife, for a trespass by the wife, but for a joint tresspass by both. Though the husband’s presence should excuse the wife, the wife’s presence will not excuse the husband. The evidence is proper. If the exception be intended against the action, there is another way to bring it forward, and give it effect, if it can have any.