Langbein v. Schneider

LANGBEIN v. SCHNEIDER. Seventh Judicial District Court of N. Y. City ; April, 1891. Husband and wife; wife's counselfees.] The reasonable value of the services of an attorney rendered in preparing papers in a suit for separation by a wife against her husband, necessary to be brought for her protection while she was living with him, but which papers were never served, the parties having become reconciled, may be recovered from the husband upon the ground of his wife’s implied agency to bind him for necessaries. Action for services by George F. Langbein and others, against August Schneider. The services were rendered by the plaintiffs as attorneys at law to the wife of defendant in consultations and preparation of papers in a suit for separation upon the ground of cruel and inhuman treatment. The papers were never served, the parties having become reconciled. The plaintiffs relied on evidence that when the wife consulted and employed them, she stated, in answer to their inquiry, that she had no means to pay for their services, and that her husband had means, and she requested them to take her case, and make her husband pay; and on evidence that the actual cruelty of her husband made it necessary for her to sue. J. C. Julius Langbein (.Langbein Bros. & Langbein, attorneys) for plaintiffs and in person. I. It is no answer to say that plaintiffs cannot recover in this action for their services. (i). Because the wife could have gone to the commissioners of charities and correction for support. (2). To a police court for assault and battery. (3.) To the civil court as a pauper or in forma pauperis and had counsel assigned to her. Conceding for the sake of the argument that she could have done this, still she was not bound to do so ; in order to seek her rights, she had still the remedy left to pursue, which she did, to seek the aid and advice of competent, reputable counsel, this the law also gave her a right to do (conceding for the sake of the argument) that she had the other remedies stated. The law is well settled that a party may prosecute as many remedies as he legally has, provided that they are consistent and concurrent, though he can have but one satisfaction (55 Barb. 263 ; 3 Abb. N. C. 92 ; 1 E. D. Smith 261 ; 7 Jones & Spencer, 190; 1 N. Y. 312 ; 1 Hill 484; 4 Denio, 554; 8 Abb. N. S. 257 ; Bowen v. Manderville, 95 N. Y. 237). Judge Compton delivering a concurring opinion with Lord Campbell, Chief Justice-in case of Bowen v. Ackroyd (34 Engl. L. & Eq. 214),, says : The law allows a wife to apply for protection by exhibiting articles of the peace against her husband where she has a well founded belief of violence on his. •part. Such a proceeding is said to be necessary, but this does not mean that it is the only mode by which she may gain her object. But while she may apply to the police court, we do-not agree that she can apply in a civil court as a pauper or “ in forma pauperisf and have counsel assigned to her. if she can do this at all it can only be under sections 458 to 467 of the Code of Civil Procedure and this we claim does not apply to a wile, because a wife, having a husband living, cannot be a pauper unless he is one also. If he has real or personal property, she has her inchoate right of dower in his real estate, or her one-third under the statute, in his personalty and sometimes even more. Could Mrs. Schneider have sworn she was a poor person or a pauper with her husband having $4000 in bank, and a monthly salary of $100 per month. On his death she-was entitled to one-third or one-half of it, as the case may be (2 R. S. 94, § 75, sub. 1), and she is certainly entitled to be supported out of his earnings. She therefore is no pauper or “ poor person,” under this act for the purpose of bringing a pauper action. As papers with a suit had not been served, the court had not acquired any jurisdiction over the husband, and therefore could neither grant alimony or counsel fee. Had the papers been served, and alimony or counsel fee been granted, or denied, then we concede we would have no action for services ; but if the defendant had been served and thus the court had acquired jurisdiction, and then the parties had settled, the attorneys could have obtained payment for their work by order of the court on motion. The court can, by order, on motion made in the action, after settlement by the parties, compel the defendant (the husband) to pay the wife’s attorneys for their services rendered her in the action (Greene v. Greene, 3 Daly, 358; s. c., 40 How. 465 ; Chase v. Chase, 29 Hun, 527; s. c., 55 How. 366; Albert Palmer Co. v. Van Orden, 54 How. 79; Eberhart v. Schuster, 10 Abb. N. C. 374, with note on enforcing Attorneys’ liens; 55 How. Pr. 391, etc., etc., and such order can be enforced by punishment as for a contempt in case the husband refuses to obey it. See note to Thr oofs Code, § 1773 and cases cited). In an action for a limited divorce a counsel fee will be allowed the wife upon weaker evidence than will suffice to entitle her to alimony (Bertschy v. Bertschy, 14 Weekly Dig. 111). The granting of alimony rests in the sound judicial discretion of the court, but with regard to counsel fees the rule is different. This is a matter of strict right, of which the court will not deprive a wife in an action for divorce or separation (Douglass v. Douglass, 13 Abb. Pr. N. S. 291; Miller v. Miller, 43 How. 125). The plaintiffs do not lose the fruits of their labor, and their remedy or recourse against the husband merely because by their own acts the court in which the wife brought her action failed to acquire jurisdiction. Why does the court when it acquires jurisdiction over the husband, make him pay so that the wife can prosecute and carry on the action against him ? Because he is made liable for her necessaries by the marriage tie, and when he is guilty of cruelty and refuses her support, and she shows aprima facie case, he must support her and her necessaries in the action (her lawyer) by the payment of alimony and counsel fee. First Point. — The uncontradicted testimony shows that the credit for the services rendered by the plaintiffs as attorneys and counselors-atdaw was given by them as such, to a husband (the defendant) for necessaries furnished his wife upon her implied agency (which the law gave her) to retain and employ them, and for the reasonable and fair value of these services he is liable. II. Among the rights of a wife is an irrevocable agency (as long as the marriage continues) to pledge his credit for her necessaries (Bishop on Mar. and Div. vol. 1, § 551, p. 433 ; Bishop on Married Women, § 403). This is so whether they are living together or separate ; only, in the latter case, the party supplying the necessaries must show that the wife was without fault in leaving her husband. A husband is legally bound for the supply of necessaries to his wife so long as she does not violate her duty as wife. He may discharge this obligation by-supplying her with necessaries himself or by his agent, or giving her an adequate allowance in money; and then he is not liable to a third party who, without his authority, furnishes her with necessaries. But if he does not himself provide for her support, he is legally liable for necessaries furnished to her, even though against his orders. Where necessaries have been thus furnished, the only questions to be considered are, 1st, Whether the husband failed to provide suitably for his wife’s support; and 2nd, Whether what was furnished to the wife were necessaries (Cromwell v. Benjamin, 41 Barb. 558; Board of Supervisors of Monroe Co. v. Budlong, 5 Barb. 493). It is no answer to such a demand of the party who furnished the necessaries that an action for divorce was pending at the time the necessaries were furnished, unless alimony had been allowed (Johnstone v. Allen, 6 Abb. N. S. 306; s. c., 3 Daly, 43). IV. Where a wife has separated from her husband, the entire burden of proof rests upon the party furnishing the supposed necessaries. He must show: 1st, that he furnished the necessaries; 2nd, that they were necessaries; 3rd, that the husband failed or refused to furnish them, or to furnish means whereby she could procure them, and that she had 110 sufficient means of her own whereby to procure them; 4th, that her separation was for a justifiable cause on her part; 5th, and generally, that he gave the credit originally to the husband (Hartman v. Tegart, 12 Kansas, 177; McCutchen v. McGahey, 11 Johns. 281; Sturtevant v. Slavin, 19 Wis. 268; Carey v. Paton, 2 Ashmead [Penn.] 140; Porter v. Beab, 25 Mo. 36; Rees v. Chilton, 26 Mo. 598; Mitchell v. Treanor, 5 R. I. 343; Walker v. Simpson, 7 Watts & S. [Penn.] 83 ; Keller v. Phillips, 40 Barb. 390; Schouler on Dom. Relations, 93, note 5 ; Ross v. Ross, 69 Illinois, 569; Rea v. Durkee, 25 Ill. 503; Bevier v. Galloway, 71 Ill. 517; Catlin v. Martin, 69 N. Y. 393 ; Minck v. Martin, 6 N. Y. State Rep. 803 ; Goodale v. Lawrence, 88 N. Y. 520). V. The courts in this country have decided as follows: 1st, where the wife has left the husband without just cause, the husband is not liable (Bevier v. Galloway, 71 Ill. 517; Morgan v. Hughes, 20 Texas, 141; Omison v. Heritage, 45 Ind. 73). 2nd, where she has left him for just cause and with no provision for her support, he is liable, but the burden of proof is on the wife (Hultz v. Gibbs, 66 Penn. 360; Thorn v. Katlin, 51 Vt. 520; McCutchen v. McGahey, 11 Johns. 281). 3rd, where they are living separate and apart with proper provision for her support, he is not liable (Walker v. Simpson, 7 Watts & S. [Penn.] 83; Crittenden v. Schermerhorn, 39 Mich. 661; Caux v. Patton, 2 Penn. 240; Blowers v. Sturtevant, 4 Denio, 46). In England the law is the same (Etherington v. Parrott, 1 Salk. 118; Watson v. Threkeld, 2 Esp. 637 Ryan v. Lams, 12 Q. B. 460; Johnson v. Sumner, 3 H. & N. 261; Eastland v. Burchell, 32 B. D. 432 ; s. c., 47 L. J. Q. B. 500; Bird v. Jones, 3 Mann & R. 121 ; Edwards v. Towles, 5 Mann & R. 624). What are-necessaries in law, and can or have they been extended to a case of the kind at bar? We contend they have,, both in England and in this country, and that the-decisions and authorities are founded on reason, common sense and justice. The husband is liable for necessaries furnished to-the wife, such as food, drink, clothing, washing, physic,, instruction, a suitable place of residence, with such necessary furniture as is suitable to her condition •in life (Parsons on Con. Vol. 1, p. 296; Mahoney v. Evans, 51 Penn. 80; Mott v. Grunhut, 8 Daly, 544; Keller v. Phillips, 39 N. Y. 351; Arnold v. Allen, 9 Daly, 198; Wharton v. McKenzie, 52 B. 606; Brooker v. Scott, 11 M. & W. 67; Hulz v. Gibbs, 66 Penn. 360; 2 Smith's Leading Cases, 364 ; Ray v. Adden, 50 N. H. 82; Raynes v. Bennett, 114 Mass. 428; Hunt v. De Blaguiere, 5 Bing. 550; Shelton v. Pendleton, 18 Conn. 417). Services of an Attorney, rendered to an infant in defending him in a bastardy proceeding, are necessaries, for which if it was reasonable for him to make a. defence, he is liable, on an implied promise (Barker v. Hubbard, 54 N. H. 539). In Carsten v. Hanselman,. (61 Mich. 121), the supreme court of that State says : “ It would be a cruel rule for a wife, if she cannot, in her husband’s absence, or in his presence if he does, not himself provide for her, make a binding agreement for any necessaries, whether articles to be purchased, or professional help, without becoming a public-charge.” Counsel fees are necessaries to a wife who-has been deserted by her husband, for advice given by attorney as to how. she should deal with tradesmen who were pressing her for pay. Husband held liable for such services (Wilson v. Ford, 3 Exchequer, 63 ; Conant v. Burnham, 133 Mass. 503). VI. Necessaries may consist of legal services(Baylis v. Watkins, 10 Jur. N. S. [Eng.] 114 ; Williams. v. Fowler, Mc.C. & Y. 269). Whenever it is necessary for the safety of the wife-to enter a complaint against her husband for a breach of the peace, the legal costs of the proceedings may be recovered against him by action.' A husband is liable to an attorney for such charges, as would be good by a wife in ordinary cases, upon the ground that the services were necessaries furnished to the wife for her protection (Morris v. Palmer, 39 N. H. 123). An expense incurred for the protection and safety of a wife, by an attorney, raises an implied promise on the part of the husband to pay the same (3 Camp. 326 ; 7 N. H. 571 ; 2 Kent's Com. 130 etc.; 2 Strange, 1214, same case). Eastman, J., in above case says: “ It is as important that her person be protected from brutal outrage and violence as that her necessary food and-clothing should be supplied. Both are for her preservation, and her husband should be as much bound to fulfill her contracts in the one case as in the other (making husband liable for the necessary costs incurred in a prosecution against him upon complaint of the wife for a breach of the peace). The case of violence, however, would seem to bclone of the greater necessity. The same judge says : “ There would seem to be an essential distinction between an application to the court for protection against personal violence, and applying for a divorce even though it should be upon the ground of cruelty. The former might be quite necessary for personal security, and by it all that should be needful in. that respect would be obtained. It would not in such a case be necessary to resort to an application for a divorce for protection, for security would already have been effected by the criminal proceedings. . . . The husband may commit such outrages upon his wife’s person, or by his threats and violent conduct place her in such personal peril that assistance and protection shall become her most pressing necessity, and it would be extraordinary if the same just principle which allows her in such a case to supply her wants at the cost of her husband, refuse her legal aid under similar circumstances at' his expense.’’ This suit was brought by a lawyer for legal advice to defendant’s wife and for moneys paid out. Court below beat him on the ground that the husband was not liable for legal services so rendered or fees so advanced for the wife without his concurrence. Judgment reversed. Brown v. Ackroyd, 34 English Law and Eq. 214. Action by attorneys for services in a divorce suit for cruel and inhuman treatment a mensa et thoro. Beaten below. Attorney for husband contended that suit for cruelty was not necessary for wife’s protection, that she could get relief in criminal court, and there the husband would be liable to the attorney for the costs. Point by other attorney: If there was reasonable ground for the institution of the suit, the credit of the wife attached, and nothing which subsequently occurred would affect the plaintiff’s right of action (Keegan v. Smith, 5 B. & C. 375). Lord Campbell, C. J.—“ A wife has authority to pledge her husband’s credit for the costs of a divorce suit where there are reasonable as well as where there are absolute grounds for instituting the suit. Under such circumstances the suit would be necessary and fit for the wife’s protection, and she would be authorized to employ a proctor, and her husband would be liable for his fees. It has been determined in Grindall v. Godmond (5 Ad. and Ell. 755), that if the wife indicts her husband for an assault, he is not liable for the costs of the prosecution ; and rightly so, because that is not a proceeding for her protection, but for the punishment of the husband. But a divorce a mensa et thoro on the ground of cruelty is a proceeding for her protection, and as she has no property of her own, she can have no redress unless she is able to pledge her husband’s credit. This is just as much a necessary as the costs of either exhibiting articles of the peace against her husband are a necessary as stated by Lord Ellenborough in Shepherd v. MacKoul (3 Camp. 326). The same principle applies in both cases, although the facts which would entitle her to exhibit articles of the peace would not necessarily entitle her to sue for a divorce. “Neither do I agree with Mr. Hill’s second proposition, that it is requisite for the plaintiff to show evidence which would - necessarily entitle her to a divorce a mensa et thoro. If this were so, she could never bring such a suit without the proctor losing his remedy for his fees if the suit failed from any cause; whereas, all that he ought to be obliged to seé is whether there is a reasonable probability of her success. Some nice cases may arise whether the evidence produced would be sufficient to entitle a wife to a divorce; but it would be too much to say that in an action for the expenses, it is requisite to lay before the jury such evidence as would necessarily entitle her to a divorce. Suppose the decree is that she is not entitled to a divorce, is the attorney who shows a reasonable ground for suing for a divorce not to have his bill paid? While that decree remains in force, he would, on this supposition, not be able to sue; but if it were reversed on appeal, he would have the right to •do so. It seems to me that the true rule is that the proctor suing the husband must prove a reasonable •cause for instituting the suit, otherwise it would be illusory to say that the wife may, under such circumstances, apply to the court for protection.” Compton, J.—In this case, there being no actual -authority to the wife to pledge the husband’s credit, we are to see whether the law by implication gives her the power to do so, on the principle that a wife who is turned out of doors has power to pledge her husband’s ■ credit for necessaries. . . . Where there is reasonable apprehension of personal violence, it may be the most proper and effectual course for the wife to .•sue for a divorce, because she would not be then bound to live with her husband. Therefore a divorce may be a necessary within the rule. The law allows a wife to apply for protection by exhibiting articles of the peace against her husband where she has a well founded belief of violence on his part. Such a pro•ceeding is said to be a necessary, but this does not mean that it is the only mode by which she may gain her object. Still we should not lightly imply such an •authority to pledge the husband’s credit. From every •quarrel in words between husband and wife, a jury is .not to be asked to infer an apprehension of personal violence. It ought to be made out on the part of the plaintiff that there is such a reasonable ground for apprehension of personal violence as justifies her in asking for protection. It is very much the same thing, -as a tradesman seeking to charge the husband with .goods supplied to the wife, which he may succeed in doing if he shows that she was compelled to leave his roof by a reasonable well founded apprehension of personal violence. A husband having deserted his wife without cause, and left her without means of subsistence, she by advice of an attorney instituted a suit for restitution of conjugal rights. She also obtained advice from the attorney as to her rights, etc., as to her dealing with tradesmen who had supplied her with necessaries and were pressing her for money, also with her landlord, etc., etc. Held, that all these steps taken by the wife were reasonably necessary under the circumstances, and that she had an implied authority to pledge her husband’s credit in respect thereof, and that on the death of her husband her attorney was entitled to recover for his services from the husband’s executors, including the costs for expenses preliminary to the suit (Wilson v. Ford, Law Journal; Cases at common law, N. S., vol. 37, part 2, p. 60). Having shown that the English law is in favor of the plaintiff’s course, and that the remedy they have -chosen is the proper one in England, viz : to sue in an ordinary action at law the husband for the value of their services rendered to the wife, let us see what the American authorities are on the subject, permitting us to remark in passing, that it by no means follows that because authorities and decisions cannot be found “ on all fours ” or “ pat,’’ as it is called, on every question that arises, that because of such failure to find or want of authority or decision, a party plaintiff is necessarily in the wrong and should be hooted at or scouted or howled down, because he is attempting to make law, when he is merely attempting to assert his rights. We maintain that our action is founded upon rea•son, justice and common sense, which is the foundation of all laws, both human and divine. This reason and common sense we have already shown to be the law in England, from which all our common law is derived, .and we shall now show further, having already done so .in the New Hampshire decisions, that the same reason and common sense has been upheld by fearless judges to their oath of office, in this country. The State of Georgia (which is the empire State of the South as is ours of the North) has two decisions upon her statute books or law reports which are in point and reason and in principle with the case at bar. In Sprayberry v. Merle (30 Georgia Rep. 81), the supreme court of that State held that: In a suit for divorce, the wife is sui juris and may charge the husband without his consent with the real value of all such services of other persons as may be necessary to her in the conduct of the suit. The action was brought by an attorney against the husband of a wife for services rendered to her as an attorney, in instituting and conducting a suit for divorce for her against her husband. The wife at the time she employed the attorney was living separate and apart from her husband, and the cases were dismissed before judgment on account of the settlement of the difficulty between the parties, and the return of the wife to her husband. Plaintiff proved his services to be worth $100, and that the causes were dismissed without want of skill, or failure, or neglect on his part to prosecute them. At the close of the testimony, the court dismissed the suit. On motion, holding that under the circumstances of the case, the action could not be maintained against the husband. Stephen, J., delivering the opinion of the general term says: “ The non-suit was granted in this case on the ground that a man cannot be chargeable for the services of a lawyer in bringing a suit against himself without his consent. This is undoubtedly true, as a general principle, but we think that a suit by the wife for a divorce must be excepted from its operation from the necessity of the case. As to this one matter of a suit for a divorce, the wife is sui juris, having a clear right to institute and conduct that kind of a suit independently of her husband’s consent. But this right is practically denied her if she can command no means of paying the agents who are necessary to the conduct of the suit. Therefore it is that, quoad hoc, she may charge the common funds of herself and husband in his hands. But as this power on her part is founded on the necessity of the case, so its extent does not exceed the demands of the necessity ; and, therefore, she can charge the common funds (or her husband, which is the same thing in effect), only with the real value of such services as she may procure, and not with the price which she may fix on them by her contract. As to the settlement which took place in this case between the husband and wife, after she had got the services of her counsel, it is scarcely necessary to remark, that the counsel, after having acquired a right to compensation for his services by rendering them at the request of the wife, could not be settled out of that right by arrangement to which he was no party. Judgment reversed.” Glenn v. Hill (50 Georgia, 95), was a suit brought by the wife’s attorney in a justice’s court for $50, for professional services rendered in a divorce suit brought by her against her husband, while the divorce suit was still pending in the superior court. The justice dismisses the suit for want of jurisdiction in his court. He appealed, and the judgment was affirmed on that ground. Judge Trippe writing the general term opinion says: “Pending an action for divorce, temporary alimony for the wife may be granted by the judge of the superior court. (New Code, § 1769.) In fixing the amount of alimony the judge may inquire into the cause and circumstances of the separation rendering the alimony necessary, and in his discretion may refuse it altogether (§ 1740). Thus, the alimony, and of course, the counsel fees for the wife, are not, as a matter of absolute right to be granted. They are by law in the discretion of the superior court judge; while the suit is pending, they are incidents to it, and can only be determined by one tribunal. If an action could be maintained by the wife’s counsel against the husband for their compensation in the justice’s court, while the suit is pending for divorce, a singular anomaly would be presented. The superior court alone has jurisdiction of divorce cases. If there be rules for the judge of the superior court they should be observed by any tribunal who may hear the question. They would be obligatory on, or authority for the justice of the peace. The law would not furnish him one rule of action'and a different one for a judge of the superior court. Whilst then the one tribunal would be determining one branch of a case over which it has exclusive jurisdiction, another ■tribunal would be passing upon another branch of the .•same case, and indirectly the question of alimony (which covers also the question of counsel fees) be heard and adjudged in a justice’s court. We think the proper and only consistent rule is, that whilst an action for «divorce is pending, the question of fees for counsel for the wife is a legal incident of the suit, and so far a part «of it as to be cognizable only by the authority that Bias jurisdiction of the main question. If, in disregard of any right the counsel may have, the parties (the husband and wife) adjust their quarrel, condone and dismiss the suit, a different question would be presented. If the counsel have just ground to claim compensation, the law would furnish the remedy. As the ■divorce suit would be at an end, and, consequently the matter of alimony concluded, and no recourse through that means for counsel fees, the right could only be asserted by an ordinary action at law. Such is the ground upon which the decision in Sprayberry v. Merk, 30 Georgia, 81, may be fully •defended, and such is the difference between that case and this.” Judgment affirmed. See also the case of Morris v. Palmer, 39 New Hamp. 123, already referred to at length. The cases in 3 Iowa, 97 ; 18 Conn. 417 ; 18 Ky. 518 ; 15 Vt. 607; 8 Cush. 404, and Dorsey v. Goodman, Wright’s Rep. 417 and 120, have all been examined by us and are not in point. They are all cases where the ■attorney sued the husband for services rendered to the wife in divorce suits for adultery, which, as will hereafter be shown, the courts hold was not a necessary for the wife for her safety or protection, but rather as a luxury, severing the marital tie, and tending to its ■destruction. Morrison v. Holt (42 New Hamp. 478), was an action brought by an attorney against the husband of a wife who had sued him for divorce for adultery. Summons and complaint was served on the husband and testimony taken, but before a decree of divorce was made the parties came together, and have been and still are living together as they were before the suit was begun. It was agreed on the trial that the charges which the plaintiffs claim are reasonable, and that the wife had .good ground for divorce. Bartlett, J., in writing the opinion for the general term says : “ It is a settled principle in the law of husband and wife that by virtue of the marital relation and in consequence of the obligations assumed by him upon his marriage, the husband is legally bound for the supply of necessaries to' the wife so long as she does not violate her duty as wife. If he does not himself provide for her support, he is legally liable for necessaries furnished her, even though against his orders.” (2 Smith’s leading cases, 364.) Legal expenses are deemed necessaries, where the conduct of the husband has rendered them necessary for the personal protection and safety of the wife. (Morris v. Palmer, 39 N. H. 126; Clancy's Hus. and Wife, 52). The authority of the wife in such cases is implied, because of the marital relation, and depends upon the necessity. of the expenditures for her support, or protection as a wife.” In order to charge the defendant in the present case, it is not sufficient for the plaintiffs merely to show that the defendant’s misconduct gave occasion for the proceedings instituted by the wife, but it must also appear that these proceedings were necessary for the personal protection and safety of the wife. The proceedings here were not had for her present or even future support as the defendant’s wife, but they were intended to dissolve the marriage contract, and release her from the position of wife to the defendant, because of his past misconduct; they looked not to protection from any present or future act of her husband, but merely to the enforcement of a right to a change of future condition, that she claimed had arisen from his previous fault. It has not been the policy of our law to imply from the marital relation any authority in the wife to bind the husband for the expense of such proceedings; her implied authority, where it exists, seems to arise from the relation, if not as an incident essential to its preservation, certainly as a consequence of its continued existence, and not as a power reserved for its destruction. Thus it will be seen that while in New Hampshire for the reasons stated, an attorney could not recover for services performed for the wife in a divorce suit for adultery, yet he could recover in an action for divorce for separation ; and this is, as Bishop says in his work on M. & D. vol. 2, § 389, 335, “ upon the doctrine, not on the ground that protection is not a “ necessary ” for the wife, for which the husband may be chargeable ; but that procuring or preventing a dissolution of her marriage, is not within the sphere of marital protection.” Mr. Bishop then cites the Morris v. Palmer case in 39 N. H. 123, where the husband was held liable for the services of the Attorney of the wife who made a complaint against her husband for a breach of the peace, upon the ground that such services were necessaries furnished to the wife for her protection, and for the reason as Lord Ellenborough in Shepherd v. MacKoul (3 Camp. 326,) so eloquently said to the jury: “ If she was turned out of doors in the manner stated she carried along with her a credit for whatever her preservation and safety required. She had a right to appeal to the law for protection and she must have the means of appealing effectually. She might, therefore, charge her husband with the necessary expense of the proceeding as much as for necessary food or raiment.” If the husband proceed against his wife to compel her to find sureties of the peace, she may charge him with the legal services needed for her defence (Warner v. Heiden, 28 Wis. 517; Barker v. Hibbard, 54 N. H. 539) If the conduct of the husband was such that she must necessarily resort to the services of an Attorney for her safety and protection in order to preserve life and limb, to protect herself or her health, then the necessity existed, and the Attorneys could recover for their services from the husband (See Shepherd v. MacKoul, supra). To the same effect (see Shelton v. Pendleton, 18 Conn. 417; Morris v. Palmer, supra ; Smith v. Davis, 45 N. H. 566, and cases cited). The case of Phillips v. Simmons (11 Abb. Pr. Rep. 287), is not in point, and is not our case. It arose at special term upon a demurrer to a complaint. The action was brought by attorneys for services rendered to a wife in an action for divorce against her husband on 'the ground of cruel and inhuman treatment. The' husband and wife became reconciled and settled the action and have ever since been and are living together as man and wife. They sued the husband for the value of their services. These facts must have appeared in the complaint. The very head note or syllabus of the case shows it is not in point. If the jvife who is the plaintiff in an action for divorce discontinue it, or is defeated in it, and judgment is rendered against her, her husband is not liable for costs incurred by her therein. Judge Bonney says: “ The defendant must have' judgment on this demurrer. . . While an action for divorce is pending, a wife may in a proper case obtain an order that her husband furnish her with means to carry it on ; but when the wife is plaintiff in-such an action, and has either discontinued it or been, defeated, and judgment has been rendered against her,, neither she nor her attorneys or counsel can have any claim upon him for the costs or expenses of her fruitless and probably causeless prosecution.” We think, with great respect for the learned jud^e, that he erred in sustaining the demurrer. The cases, cited by him were all actions for divorce upon the-ground of the husband’s adultery. This the courts-have wisely held is not a necessary for the wife tO1 have, same as her protection from his assaults, for it separates man and wife forever, divorces the marriage,, and in the language of Judge Bartlett in Morrison v. Holt, 42 N. H., p. 478 (already cited by us): “ It has-not been the policy of our law to imply from the marital relation any authority in the wife to bind the husband for the expense of such proceedings; her implied authority, where it exists, seems to arise from the relation, if not as an incident essential to its preservation, certainly as a consequence of its continued existence, and not as a power reserved for its destruction.’’ But in the case before Judge Bonney, the action was for services performed in an action for cruel and inhuman treatment. We submit that the complaint was a good one on its face, unless it showed on its face that the wife never had any meritorious cause of action, for her lawyers were bound to prove that she or their client had a reasonable probability of her success (see Lord Campbell in Brown v. Ackroyd,] supra). If the complaint showed this, then Judge Bonney was wrong because he could not presume otherwise judicially, than that the complaint was true. At all events he either forgot, or he did not know, or it was not brought to his attention, that because the husband and wife discontinued their action, that nevertheless she might have had a perfect cause of action for cruel and inhuman treatment against her husband, who had cruelly and inhumanly beaten her and treated her like a brute the discontinuance of the suit by no means proved the contrary ; and yet Judge Bonney assumed this, for he says it was a fruitless and probably causeless prosecution. On demurrer it is well settled that there are no presumptions outside of the paper demurred to. Our proof before your honor certainly showed anything but a fruitless or catiseless prosecution by Mrs. Schneider against her husband. Mrs. Schneider, her daughter and Mrs. Feeny, all swore that the papers they swore to were true. The defendant was on the stand, and did not open his mouth in denial. Judge Bonney was premature in sustaining the demurrer. He should have allowed the lawyers to prove their case, and then, if it appeared that the wife’s cause of action against her husband for his alleged cruel and inhuman treatment was fruitless, or causeless, or unnecessary, were not sufficient to grant her the relief asked for, her lawyers would not have had any cause of action against her husband for their services. If the husband did supply the wife with necessaries, and yet she went to a grocer or tradesman and bought them, or the same things, the tradesmen couldn’t recover from the husband, because the act of the wife was causeless or unnecessary. Therefore, the question before the court or jury is, was the wife justified in her act, was it necessary for her comfort or protection ? And so with the question before Judge Bonney on demurrer. And therefore, if the husband wilfully makes the necessity for the wife by his brutal and inhuman conduct, he is liable for the services performed for the wife by third persons (her attorneys) for her safety, comfort and protection. The case of Catlin v. Martin, 69 N. Y., 393, is not in point. There the husband was able and willing to provide for his wife, if she would live with him ; she left him at the instigation of her parent, against her husband’s will, and without justifiable cause, and went and lived with her parents., The parents sued for the board furnished the wife, and in the absence of evidence of a request on the husband’s part that such food be furnished, or of a promise to pay, he was held not liable. We say it would have been the rankest injustice, if he had been held liable under such circumstances. The case of Anderson v. Cullen, 8 N. Y. Supp., 643, is also not in point. That case holds the well known doctrine that a husband is not liable for moneys loaned to the wife to buy necessaries, upon the ground that money, as such, is not a necessary. We might cite your honor numerous cases on this point, which have absolutely nothing to do with the case (see Knox v. Bush-ell, 3 C. B. N. S. 334, an English case; also, Walker v. Simpson, 7 Watts & Sergeant Rep. [Penn.] p. 88.) Wm. J. Lippmann, (Kohn & Ruck, attorneys), for defendants I. During the whole time of the rendition of the services the defendant and his wife lived together under the same roof and he supported her and his family. Before the so called “ enabling acts,” husband and Wife were in law one person and she could make no valid contract. He was bound to support her, and was liable for her torts. Thus at common law every married woman residing with her husband and having the general management of his house and household affairs, was presumed to be his general agent in dll matters connected with the domestic economy of the house and family. She was therefore clothed with an implied authority from the husband to give orders for wearing apparel, furniture, provisions and all such things as might fairly be presumed necessary for the decent maintenance of herself, her husband and family, and the general comfort and enjoyment of the household, according to the apparent circumstances and situation in life of her husband and the position in society which he allowed her to assume. But a wife had implied authority to pledge her husband’s credit for such things only as fall within the domestic department ordinarily confided to the wife’s management, and .are necessary and suitable to the style in which her husband chooses to live. And if the husband separate from his wife and leaves her destitute without being able to prove that she has forfeited her marriage rights, the law gives her a right to support herself upon the credit and at the expense of her husband ; and any tradesman who at her request supplies her with necessaries suitable to her station in life, supplies them in contemplation of law to the husband himself; but while the law in such cases makes her the husband’s agent to-order such things as are reasonable and necessary for herself, it gives her no authority to pledge his credit beyond what is reasonably necessary. But all the-common law cases hold uniformly that where the-commodities are furnished to the parties living together such only can be recovered as are merely household necessaries and that for all others there must be an expulsion by the husband or separation combined with a failure to provide for the wife. This common law liability has continued in this. State, but has been somewhat modified by the various enactments, knowm as the “ Married woman’s acts,” or “ Enabling acts.” A complete review of all the cases decided in this. State will not show a single case in which attorneys’ fees were held to be necessaries furnished. The only cases are the old English cases above referred to and it. was there held necessary to show that the husband had ejected his wife from their home and left her unprovided. These cases which are found in the old English reports are the following ones : they are (Shepherd v. MacKoul, 3 Camp, 26; Williams v. Fowler, M’Ciell. & Y. 269; Brown v. Ackroyd, 5 E. & B., 819; Rice v. Shepherd, 12 C. B. N. S. 332). In each of these cases where the attorneys sued for fees it was held necessary to show that the husband had either deserted the wife and left her without means, or had expelled her from his home and left her without means ; besides which there was no statute at that time allowing the courts to award counsel fees in, matrimonial actions. Since these cases there has been no case decided on this point; and all the decisions in this State are to the effect that it is necessary in order to make the husband liable, to show either that the husband and wife lived together and the articles furnished were commodities, or thát being separated, the-husband had failed to make suitable provision for his. wife. Thus the court will find that in all the cases cited and in Barbour’s and Johnson’s reports, the wife had separated from the husband with good cause and without any provision being made for her. And in the later reports we find the law laid down, as follows: When they are living together, a wife is deemed the-husband’s agent for the purchase of necessaries for the family e.g. groceries (Mott v. Greenhut, 8 Daly, 544) If he, living separate from her, supplies her wants, in a reasonable manner, a person furnishing her with necessaries does so at his own risk and cannot hold him therefor (De Long v. Baker, 9 Weekly Dig. 315 ; see also Catlin v. Martin, 69 N. Y. 393). The contention that an attorney may recover fees for services rendered to the wife on the same principle that a physician may recover for his services, is untenable ; a physician’s services in case of illness are as much a necessary as food or clothing, but it seems, impossible to put an attorney’s services hostile to the husband’s interests in the same category. The case of Anderson v. Cullen (8 N. Y. Supplement 643), decided at common pleas general term,, seems to be controlling. In that case Mr. Justice Bookstaver, after reviewing the law on the subject, holds that a husband cannot be held liable for moneys advanced to the wife to purchase necessaries. Numerous decisions have been rendered by the supreme court, superior court and court of common pleas at special term, in actions for divorce or separation where the parties had after suit brought come together and the attorney refused to discontinue without payment of his costs, and the courts have invariably compelled such discontinuance. In the case at bar the parties were living together, the plaintiffs accepted the wife’s retainer knowing this fact and knowing that the defendant was supporting his wife and that she had money in bank. The law is distinct on that subject, that where parties are living together the husband can only be held liable for household commodities (e. g. food, raiment, physician’s services,servants’ wages), furnished in the household in accordance with their means of living; and not for anything else. Had the defendant and his wife been separated by reason of the husband’s fault and had he failed to provide for her, then the plaintiffs might possibly have had a cause of action, but not where, as here, they were living together and he provided for her. The importance of this question, and the absence of controlling authority in this State leads me to present the arguments of counsel with unusual fullness. Kincheloe v. Merriman, Ark. June 6, 1891, 16 Southwest, Rep. 578, was a suit for fees of the attorneys fora wife, who contemplated suing for divorce on the ground of cruelty, but the matter was compromised and the suit not instituted. The attorney’s complaint alleged that it was absolutely necessary for the wife’s protection and safety that she should have legal advice. Held\ that the action would not lie. The head note implies that the husband and wife had separated when the advice was sought. Hughes, J., delivering the opinion of the court after reviewing the state of the authorities, says : “ We cannot well understand how a suit for divorce could be necessary, or actually afford protection to the wife against personal abuse upon the part of the husband. A proceeding against him to compel him to keep the peace might be necessary, and might have the desired effect; and for services rendered for the wife in such a proceeding the husband would be liable, on the ground that the wife has the right to pledge her husband’s credit to procure services which are necessary to her protection and. safety.* In the ■cases of Glenn v. Hill, 50 Ga. 94 ; Sprayberry v. Merk, 30 Id. 81 ; Gossett v. Patten, 23 Kan. 340 ; and some others,— the husband is held liable for the wife’s counsel fees in an independent action at law, and in some of the cases even though the suit for divorce was discontinued ,or not brought. But the preponderance of authority in the American states is that for services rendered a wife in a suit for divorce an attorney cannot recover in an action at law against the husband, for the reason that prosecuting or defending a suit for divorce has no relation to her protection as wife. That when the attorney has a remedy in the suit, he cannot sue afterward for additional compensation,—see Burnham v. Tizard, Nebr. 1891, 48 Northwest. Rep. 823. [MAJORITY — McKean, J.] McKean, J. This is rather a novel case and there are evidently no reported cases in this State on the point involved. I have read over the evidence, together with the briefs and points of both counsel, very carefully. The law is no doubt well settled that a wife has an implied urgency to bind her husband for her necessaries, when he fails to supply them. The English cases cited uphold plaintiffs’ contention, and the two Georgia cases are strongly in their favor. I cannot well disregard them and feel justified in following them. Under the evidence in this case I think the plaintiffs are entitled to judgment.