This was an action for trespasses.committed on the plaintiff’s land by the defendant’s cattle. One defense was, that the defendant was a married woman, and that her husband, who was living with hex’, should have been joined with her as a defendant iñ the action.
The action was brought before a justice of the peace, where the plaintiff recovered a judgment against the defendant, personally, for $20 damages, besides costs. The defendant appealed to the Cortland county court, where the judgment against her was affirmed, with costs. The defendant appealed from the judgment of the Cortland county court to this court.
The cause was first argued at the July term of this court in 1868; the court being equally divided in opinion, a reargument was ordered at the November general term of this court in 1868. The cause was again argued at the January term of this court in 1869, and w'as decided at the May general term, 1869, by Boardman., Parker and Bai.com, justices. Justice Murray was then sitting as a member of the Court of Appeals.
It is provided by section 114 of the Code, “ when a married woman is a party, her husband must be joined with her, except that, 1. When the action concerns her separate property, sh'e may sue alone.” The second subdivision of that section relates to actions between husband and wife, and need not be considered.
There can be no doubt that it is necessary for the plaintiff" to join the husband as a defendant with the wife in an action like this, unless the old rule was changed by the legislature in 1860 or 1862. (See Coon v. Brook, 21 Barb. *421546; Horton v. Payne, 27 How. Pr. R. 374, and eases there cited.) Horton v. Payne was affirmed at a general term of this court.
This action concerned the damage the defendant’s cattle did upon the plaintiff’s land. It did not concern the separate estate of the defendant, within the meaning of section 114 of the Code. The action was ex delicto, for a tort. The law always was, prior to 1860, that the hushand was j ointly liable with the wife for her torts. If the cattle of the wife escape and do damage upon the land of another, it is her tort, for which her husband is jointly liable with her, unless he is relieved from such liability by the laws of 1860 or 1862.
According to section 7 of chapter 90 of the laws of 1860, (Laws of 1860, p. 158,) “any married woman may, while married, sue and be sued in all matters having relation to her property.” The same or similar language was retained when that section was amended in 1862. (Laws of 1862, p. 344.)
It is provided by chapter 172 of the laws of 1862, (Laws of 1862,p. 343,) “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, or the recovery therein.” (Id. § 5.) “.A married woman may be sued in any of the courts in this State, and whenever a judgment shall be recovered against a married woman, the same may be enforced by execution against her sole and separate estate, in the same manner as if she were sole.” (Id. § 7.)
I think this language is insufficient to relieve the husband from his common law liability for the torts of his wife. It only exempts him from liability for damages or costs in actions to which his wife is a party, when he is not also a party. The legislature must take another step in order to relieve the husband from liability for the torts of his wife, whether she commits them with her own *422hands, or by allowing her cattle to go upon the land of another.
[Broome General Term, July 20, 1869.But it is said this action was a “ matter having relation to the sole and separate property” of the defendant, and that therefore she was properly sued, the same as if she had been sole. (Laws of 1862, p. 344, § 7.) The action did not, and could not, affect the defendant’s right or title to the cattle that did the damage upon the plaintiff’s land; nor did it affect her possession, or the right to the possession, of such cattle; and I am of the opinion she was not sued in a “ matter having relation to her sole and separate property,” within the meaning of the act of 1860 as amended in 1862. (Laws of 1862, p. 344, § 7.)
For these reasons, I am of the opinion the judgment of the county court, and that of the justice of the peace in the action, should be reversed, with costs.
Judgment affirmed.
Balcom, Boardman and Parker, Justices.