ORANGE, 1843. Johnson v. Bayley. plies with much greater force against the defendant than against the orator. From the evidence in the case, in a trial at law, the jury would be directed, at this time, to presume a grant from General Bayley to the claimants under the right, according to the doctrine of the case in 4 Wend. p. 58; but, as the defendant has improperly interfered between the trustee and the cestui que trust, it may be proper, to put an end to litigation, to compel him to convey to the orator. Whether he will have to pay the fifty dollar note to the administrator of General Bayley, is of no importance in this case; nor can he complain, if, having bought one lawsuit, he finds himself visited with as many as may be necessary to prevent the consequences of an improper and unjustifiable interference with the claim of the orator. Nor can he call on this court to protect him from the consequence of an unprofitable purchase of a lawsuit, as such purchases are not favored in a court of equity. The decree of the chancellor is, therefore, affirmed with additional cost. WASHINGTON COUNTY. MARCH TERM, 1843. Present, Hon. CHARLES K. WILLIAMS, Chief Justice. A husband is not liable to an attorney for professional services rendered his wife, in defending against a petition for divorce, preferred by him, or in procuring a bill of divorce, on her petition. Goods, or services furnished,or rendered, after the commencement of a suit, become a part of the account; and the party furnishing or rendering, is not obliged, while the suit is pending, to receive pay for a single charge. Where a party intends to rely on a tender, he cannot make it on a trial be fore an auditor, and leave the money in his hands, but must bring it into court. THIS was an action of book account, in which there was a judgment to account, and reference to an auditor. The auditor reported that, to the first three items of the plaintiff's account, amounting to 88 cents, there was no objection by the defendant; that the fourth charge of $1.83 accrued after the commencement of the suit, and that, at the trial before him, the said sum was tendered by the defendant to the plaintiff, which remained in his, the auditor's, hands; that the subsequent items of the account, from No. 5 to No. 29, inclusive, were for professional services rendered, and money paid out for, and at the request of, one Mary S. Hurlburt, then wife of the defendant, in defending for her, against a petition for divorce commenced against her by the defendant; and that the remaining items of the account were for like services, and disbursements at the request of said Mary S., in the prosecution of a petition for a divorce for the cause of intolerable severity, in her favor, against the defendant, made returnable at the same term of the court as WASHINGTON, the said petition of the defendant against the said Mary S. March, And the auditor reported that both of said petitions were 1843. tried by the court, together; that the petition of the said Ozro Hurlburt was dismissed, and that, by the consent of the said. Ozro, a divorce was granted on the petition of said Mary S., and she was allowed alimony to the amount of $250. Wing v. Hurlburt. The auditor, thereupon, submitted to the court, whether the defendant was liable to the plaintiff for said professional services and disbursements, and reported that, if the court should be of opinion that he was liable, he found due to the plaintiff the sum of $99.50; but if the court should be of opinion that the defendant was not thus liable, he found due the plaintiff the sum of $2.71. Upon this report, the court rendered judgment for the plaintiff, for the whole of his account; to which decision the defendant excepted. J. A. Vail and W. K. Upham, for defendants. I. As to the first item of the plaintiff's account, objected to by defendant, (item No. 4) we say, although it was necessary for the auditor, by statute, and by the decision of the case of Martin v. Fairbanks, 7 Vt. R. 97, to audit all the accounts of the parties "to the time of making up the report," yet, this charge having accrued subsequently to the commencement of this suit, it was competent for the defendant to pay it, and the tender of this amount by the defendant to the plaintiff, at the hearing before the auditor, will avail him and amount to a payment; if not, the consequence is,' there can be no dealings whatever between persons who have an action of book account pending. II. As to the items of plaintiff's account which accrued in defending the bill of divorce instituted by defendant against his wife. From the facts found by the auditor, we contend, that the defendant is not legally liable to pay this part of the account. It is not a contract for necessaries, within the meaning of that term, as applied to the legal liability which results from the relation of husband and wife. The husband is bound by all contracts of the wife, for necessaries, made during coverture. This rule, with some exceptions, not necessary to refer to, contains the whole liability of the husband; and this, according to Mr. Reeves, March, 1843. Wing v. Hurlburt. in his Domestic Relations, "rests wholly on the ground of its WASHINGTON, being a duty in him to provide necessaries for his wife, which the law will enforce." Ch. Kent says, "the husband is bound to provide his wife with necessaries suitable to her situation and his condition in life, &c., but for any thing beyond necessaries he is not chargeable." Blackstone lays down the same principle in almost the same language. Were the professional services of the plaintiff necessaries, within the true meaning of that term, as understood in the law, and used by these eminent jurists? By reference to the earlier forms of pleadings and authorities, we find this term defined. Whittingham v. Hill, 2 Croke's R. (Jac. 1) 494, and authorities there cited; Shepard v. Mackoul, 3 Camp. 327, note. By necessaries we understand food, drink, clothing, &c., for the support and sustenance of life. The case of Shepard v. Mackoul, above cited, can afford the plaintiff's action no support, for, in that case, the professional services of the attorney were, in the first instance, necessary for her personal safety, and were required for her "preservation and safety;" and Lord Ellenborough expressly says, "that the defendant's liability depended upon the necessity of exhibiting articles of the peace against him." And with respect to the other part of the case, he says, "the defendant knew and approved of the business his wife carried on, and was aware of the prosecution, without expressing any dissent to the plaintiff's defending her. I think a promise may fairly be inferred, on the part of the defendant, to pay the plaintiff for his labor in conducting the defence." It will be seen by an examination of this case and other cases of like character, and also by the examination of that class of cases where the husband bas deserted his wife or causelessly turned her away, and has been held liable for necessaries, that, in the first case, the professional services rendered for the wife, were necessary to protect her from actual violence, and, in the latter, the articles furnished were necessary for her subsistence and support. How can this court determine whether it was necessary for the wife to defend the bill of divorce instituted against her by the husband? Suppose all the charges in the bill were true, will this court sit and determine whether the bill ought to have been granted? And can it make any difference with the the defendant's liability whether VOL. XV. S. R. VOL. I. 77 1843. Wing WASHINGTON, the prayer of the bill was granted, or whether the bill was March, dismissed? If this court sustain the decision of the court below, they extend the liability of the husband indefinitely; but the adoption of the old rule, making the husband liable only pro necessariis victu et apparatu," will reduce that liability to legal certainty and keep it within known bounds. v. Hurlburt. III. As to that part of the plaintiff's account which accrued in the commencement and prosecution of the libel for divorce brought by Mary S. Hurlburt against the defendant. If the court should interpose and protect the wife from the bill of the husband, and compel the husband to pay the expenses of its defence, they certainly will not place in her hands a sword and compel the husband to pay for her means of attack. There may be some apology for the court in sustaining the first part of the case, but we think they never can make the husband liable for this part of the plaintiff's account. And the fact that the divorce was granted on the bill of the wife, can make no difference. The supreme court allowed Mary S. Hurlburt $250, as alimony more than sufficient to pay all the expenses of both bills. The cases cited by the plaintiff, from the English ecclesiastical reports, can have no authority in a court of common law jurisdiction. J. A. Wing, pro se. I. Is the husband bound to pay the attorney for his services on the retainer of the wife, in a case brought by the wife against the husband for a divorce, on the ground of intolerable severity, where a bill is granted for that cause? The granting of the bill is conclusive evidence that the husband was guilty of intolerable severity, and that his wife had just cause to appeal to the laws for protection. If the husband, by his cruel conduct, compels the wife to seek protection from him, by an appeal to the laws, will this court deprive her of the means of appealing effectually? In matters of divorce, this court sit as a court of law, deriving all their powers from the statute, and are not governed by the rules of the English ecclesiastical courts. Harrington v. Harrington, 10 Vt. R. 505. This court has no power to grant temporary alimony. Ibid. The statute gives this court |