15 Vt. 607 | Vt. | 1843
The opinion of the court was delivered by
The principal question in this case is, whether the defendant is liable to the plaintiff, for professional services, rendered for the wife of the defendant, in procuring a divorce from him, and in resisting the petition, which he preferred for the same purpose. There was no engagement or employment of the plaintiff by the defendant, but the services were evidently performed, contrary to his wishes and inclination; and if he is liable, it is on his assent, as resulting from the circumstances of the case, implied by law, even against his express wishes.
The husband is liable for necessaries furnished his wife, under such circumstances that it may be presumed he would have consented ; but this usually means necessary
To exhibit articles of peace against him, to lay him under bonds to keep the peace towards her, is necessary for her personal security, to protect her from personal violence. This was the decision of Lord Ellenborough in the case of Shepherd v. Mackoul, 3 Camp. 326. When the wife was compelled to institute proceedings against him, in law and equity, to compel him to furnish her with a support and maintenance, the legal assistance furnished was deemed necessaries, for which the husband was made liable. Williams v. Fowler, cited in Clancy’s Rights of Married Women, 52. In all such cases, it is for a jury to- determine whether her treatment was such as to justify any person in furnishing her with support, or legal assistance, contrary to- the wishes of the husband, and where the law will declare his assent thereto. But to dissolve the bonds of matrimony between them, on her request, or to resist his petition for that purpose, cannot be considered as necessary for her safety or preservation, so as to enable her to procure professional assistance therefor, on his credit and at his cost. No case is found where this was ever attempted.
In the ecclesiastical courts in England, costs may be decreed in any case when the court think proper. Hence it is not unusual to decree costs to-be paid by the husband, in suit for a divorce. The case of D’Aguilar v. D’Aguilar, 3 Eccl. R. 329, was of this description. The courts may, in such case, decree temporary alimony, while the suit is pending, not only for the support óf the wife, but to enable her to proseeute or defend the same. But all the powers of this court on the subject of divorce are given by statute, and the court is not authorized, either to decree temporary alimony, or award costs. Harrington v. Harrington, 10 Vt. R. 505.
As the legislature have not thought proper to authorize the
The question in relation to the tender was decided in the case of Pratt v. Gallup, 7 Vt. 344. Where a party intends to rely upon a tender, he cannot make the tender on the trial before the auditors, but must bring the money into court. It was also decided, in that case, that goods or services furnished or rendered, after the commencement of the suit, became a part of the account, and the party furnishing or rendering them, was not obliged, at a time subsequent to the charge, and while the suit was pending, to receive the pay for a single charge, at the hazard of having this payment turn the suit against him. If this produces either inconvenience or injustice, it cannot be remedied by the court, but must be the subject of legislative enactment. The judgment of the county court is reversed, and judgment