McCurley v. Stockbridge

Alvey, C. J., delivered the opinion of the Court. The question in these cases is raised by demurrer to the declarations. In the one case, the widow sues to recover ⁴²³ •of the administrators of her deceased husband a sum with which to pay counsel fees for prosecuting a suit for divorce from her husband in his life-time, but which proceeding never reached a decree, in consequence of the death of the husband. In the other case, the action is by the attorneys themselves to recover of the administrators of the deceased husband reasonable compensation for services rendered the wife in the divorce suit, as for necessaries supplied to her. 1.

As to the action by the wife, we know of no principle upon which it can be maintained. The action is not for •alimony that has been awarded to the wife during the life-time of the husband, nor is it for money paid by the wife to the use of the husband, in discharge of an obligation imposed upon him by an order of Court. But the •claim sued on is for $900, the amount demanded of the plaintiff by her counsel, and which she seeks to recover in her own right, that she may be enabled to meet the demand. It is clear, we think, that whatever implied assumpsit may have arisen on the part of the husband to pay counsel fees for services rendered in the divorce proceedings at the instance of the wife, such implied assumpsit was not raised to the wife, and she can have no right to maintain an action for any such claim.

The Court below sustained the demurrer to the declaration in this case, and this Court fully concurs in that ruling. 2. As to the action by the attorneys, that stands upon different principles. The declaration alleges the employment of the plaintiffs by the wife; the institution •of the proceedings by her for a divorce a mensa et thoro from her husband; the prosecution of the suit until the •same became abated by the death of the husband; and that the services were necessary and reasonable for the wife, and were rendered during the life-time of the husband. The facts thus alleged are admitted by the de ⁴²⁴ murrer, and the question is, whether there was any-implied obligation or assumpsit on the part of the husband to pay for the professional services rendered for and at-the instance of the wife?

That a husband is liable for the necessaries supplied to-a wife who, without fault or legal provocation, has been compelled to leave or is justified in leaving him, and live separate and apart from him, is a proposition not disputed. But the question here is, whether the services sued for in this case can he regarded as necessaries supplied to the-wife, and for which she had power to contract on the-credit of her husband. It has long ago been held, that where a wife was turned out of doors and threatened by her husband, and she employed an attorney to exhibit articles of the peace against him, the husband was liable to the attorney for the payment of his charges; for, as was said by the Court, whenever the husband by his conduct compels the wife to appeal to-the law for protection, she may charge him for the necessary expense of the proceeding as much as for necessary food or raiment; and her solicitor may sue for his proper-charges. Shepherd vs. Mackoul, 3 Camp., 326; Turner vs. Rookes, 10 Ad. & Ell., 47.

And so it has been held that the husband’s estate was liable for preliminary expenses incidental to a suit for the restitution of conjugal rights, instituted by the wife, hut before the suit came to a hearing the husband died, and no decree, therefore, was-ever pronounced. Wilson, et al. vs. Ford, L. R., 3 Exch., 63. In this last case cited, Channell, B., said: “I think,, that where a suit was instituted, as it was here, for restitution of conjugal rights,