It is conceded that the cattle, horses and hogs of the defendant passed from her land upon the plaintiff’s land, the fences between the two farms having been before that removed, and that damage was done to the plaintiff’s land and crops.- Upon such a state of facts there can be no doubt that the defendant is liable; unless the legal objections urged by the defendant on this appeal *418are well founded. Because the, defendant is a married woman, it is insisted the action cannot be maintained without joining her husband as a party. If we are governed by the Code, as it was amended in 1857, (§ 114,) and has since stood, the wife could not be sued alone, except by her husband.
The husband must be joined, except where she sues in respect to her separate property, or where the action is between husband and wife.
By the act of 1860, as amended by the act of 1862, (Laws of 1862, p. 343, &c.,) “ any married woman may sue or be sued in all matters having relation to her sole and separate property * * * in the same manner as if she were sole.” “In an action brought or defended by any married woman in her name, her .husband shall not— neither shall his property—be liable for the costs thereof, nor the recovery therein.” “A married woman maybe sued in any of the courts of this State, and when any judgment shall he recovered against any married woman, the same may he enforced by excution against her sole and separate property in the same manner as if she were sole.” The act of 1862 certainly modifies the Code, (§ 114,) and in its letter authorizes the making of a married woman sole defendant in all matters touching her separate estate 'or arising therefrom.
- Nor is there any reason, founded on principle or authority, by which actions ex delicto, as well as actions ex contractu, are not embraced in the above provisions.
The cases cited by the appellant are of torts of a personal character, such as assault and battery, libel, slander, and for penalties in nowise affecting or arising from the separate estate of a married woman, and should he carefully distinguished from the class of torts frequently arising out of the ordinary conduct of business, such as negligence, trespass on land, trover, replevin, fraud, &e. The former are the personal acts of the wife, for which the husband *419is held responsible, upon the theory that he has the power to control the conduct of his wife.
But when the wife is allowed to conduct business independent of her husband, it would be very unjust that he should be held responsible for all her errors of omission or commission, and the law does not require it. A careful examination of the cases cited by the appellant will show nothing in conflict with this distinction, and the following cases support the rule I have laid down : Porter v. Mount, (45 Barb. 425;) Klen v. Gibney, (24 How. 31;) Morrell v. Cawley, (17 Abb. 76;) Code, §§ 118, 119.
By the act of 1860, property acquired by the labor of a married woman belongs to her; and this stock which committed this trespass was bought out of such earnings.
There is nothing in the return showing whether such earnings were before or after 1860, and in such cases every presumption is in favor of the judgment, and that the property was her. (Bishop v. Main, 17 How. 162.) Even if this were not so, the defendant would still be responsible for trespass committed by cattle in her possession and under her control. (Tonawanda Railroad Co. v. Munger, 5 Denio, 255.) I cannot see how the evidence relating to the lane or highway, and the division fence, can operate as a ground for reversing this judgment, since there is no attempt to show that the plaintiff removed any portion of the fence which he was bound to maintain. (Colden v. Eldred, 15 John. 220.)
As a question of fact, that has been settled by the justice against the defendant, and there is nothing in the return from which we can say that such conclusion was wrong. All the inquiries as to the location of the division fence, or the existence of a highway, were wholly immaterial.
There is nothing in the other exceptions which calls for particular notice.
There were no fatal errors committed on the trial before *420the justice, and the judgment of the justice, and of the county court, -should therefore be affirmed, with costs.
Parker, J., concurred.