39 N.H. 123 | N.H. | 1859
By the Revised Statutes, chapter 222, section 21, it is provided that all legal costs attending the arrest, examination or conveyance of any offender, shall be paid by the complainant, unless the same is directed by the counsel for the State, or allowed by the court of Common Pleas. State v. Stearns, 21 N. H. 108.
The proceedings against the defendant were not ordered by the attorney-general, or by the solicitor for the county, and the court refused to pay the costs. The plaintiff’s fees, then, so far as the charges were legal, would have been a good claim against any ordinary complainant in a. criminal proceeding. The county did not become liable for these costs by the action of the court in discharging the defendant from imprisonment. His arrest and commitment was no act of theirs, and they did not assume the payment of the costs that had been made by his being received at the jail by the order of the magistrate. He was discharged at the first term of the court; and to hold
But the case presents the question whether a husband, against whom a complaint is made by the wife for a breach of the peace, is liable for such costs. If a husband abandons his wife, or if they separate by consent, without any provision for her support, or if he sends her away, or by his improper conduct compels her to leave his house, he is liable for her necessaries, and he sends credit with her to that extent. Allen & als. v. Aldrich, 29 N. H. 63; Walker v. Laighton, 21 N. H. 111; Hancock v. Merrick, 10 Cush. 41; Frost v. Willis, 13 Vt. 202; Montague v. Benedict, 3 B. & Cr. 631; Clement v. Mattison, 3 Richard. 93; Fredd v. Eves, 4 Harring. 385; Evans v. Fisher, 5 Gilman 569; 2 Kent’s Com. 148. When a husband compels his wife to leave his house, the law, from the necessity of the case, makes him chargeable for those things which are necessary for her support. He is bound to provide her with necessaries, when she is not in fault, from a principle of duty and justice. In case of personal violence committed by the husband upon the wife, she may make a complaint against him for a breach of the peace, and be a witness .to sustain the complaint. 2 Kent’s Com. 179; Sedgwick v. Walkins, 1 Ves. Jr., 49; Turner v. Rookes, 10 Ad. & El. 47. This is allowed, ex necessitate, for the personal safety of the wife.
It appears to us that these principles carried out must make the husband liable for the necessary costs incurred in a prosecution against him upon complaint of the wife for a breach of the peace. It is as important that her
By the statute, the complainant is liable for the costs in the first instance, unless the prosecution is ordered by the counsel for the State. The counsel for the State seldom if ever interfere to order a complaint for a breach of .the peace, and no one is required to make out such a complaint, on which a warrant issues, without compensation. A married woman can make no contract binding upon her husband, without his assent, except for necessaries; and unless her employment of some person to draw a complaint shall be held to fall within the legal import of that term, she may be remediless against any outrage by him. The proceeding is for her protection, and, as she may have no property of her own, she can have no redress unless she is able to pledge her husband’s credit.
Ve find in the English Beports several decisions which sustain these views. It is there held that whenever it is necessary for the safety of the wife to exhibit articles of the peace against the husband, the costs may be recovered against'him by action. Williams v. Fowler, McL. & Y. 269; Shepherd v. McCoul, 3 Camp. 326; Turner v. Rookes, 10 Ad. & El. 47. And in a recent case it was decided by the Queen’s Bench that the costs of a proctor employed by a wife in the ecclesiastical court, to prosecute a suit against her husband for a divorce on the ground of cruelty, may be recovered against the husband as a necessary, if it appears that there were reasonable grounds for instituting such a suit. Brown v. Ackroyd, 34 E. L. & E. 214. Lord Campbell, Chief Justice, said, that under such circumstances (those of cruelty) the suit for divorce would be necessary and fit for the wife’s protection : that it was
The case before us does not require the court to go to the extent of the rule laid down in Brown v. Ackroyd. Under our statutes fixing the causes and prescribing the proceedings for divorce, it has not been the practice of the court to allow costs, as such, to either party, except partially in some instances by interlocutory orders. If the wife is the libelant, and prevails, her expenses are usually considered in awarding her alimony.
In Johnson v. Williams, 3 Iowa 97, it was held that the husband is not liable for the fees of an attorney employed by the wife to prosecute a divorce; and such, we infer from decisions in Massachusetts and Yermont, upon questions of costs in divorce cases, would probably be the holding of the courts in those States. Coffin v. Dunham, 8 Cush. 404; Wing v. Hurlburt, 15 Vt. 604.
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.
So far as making the husband liable for -costs on complaints by the wife for a breach of the peace, the English
We therefore think that the ruling of the court below was wrong, and that the plaintiff is entitled to recover for all such charges as would be good against complainants in ordinary cases. The judgment of the court below must consequently be set aside and the cause stand for trial.