The plaintiffs are attorneys and counsel-lors, who, at the request and retainer of the defendant’s wife, prosecuted, on her behalf, a petition for a divorce from him, *421for a legal and sufficient cause, connected with a prayer for alimony and the custody of minor children. The petition was. fully granted.
The claim of the plaintiffs now is, to recover of the defendant, the husband, their reasonable disbursements and fees in the prosecution of that petition.
There was no request or assent, in fact, by the defendant, that his wife should proceed against him, or should employ counsel.
This demand of the plaintiffs has no support from any precedent to be by found us, in this country or elsewhere ; although, the frequency of applications for divorce, it would seem, would have presented occasions for such claims, if it had occurred to gentlemen of the legal profession, that they could find support from any,known legal principle. And although this, of itself, is not conclusive against this experiment; yet it will induce us to hesitate much, before we sanction the doctrines relied upon to support it.
If we regard the uniform practice of our own courts, in divorce cases, as evidence of the law, we shall find in it nothing to sustain this demand, but much to oppose it. When the wife is respondent, and defends herself against the application of her husband, the practice is uniform, in case of her inability, to order him to provide funds for her defence ; but we have never known such aid to be furnished to her, when she was thejprosecuting party ; nor has she, in such case, » though successful, been considered as entitled to recover the costs ordinarily due to a prevailing party. Her husband, in such case, has never been subjected directly, by her, to any of the expenses of her suit. Can he be subjected at the suit of her attorneys ? It is not difficult, we think, to foresee, that the immediate effect of the principle asserted by the plaintiffs, will be, to multiply applications for divorce, especially in conditions of society, where now they are comparatively few.
The liability of the husband for the contracts of his wife, is imposed, by reason of his assent to, or approval of them ; or, because the law of marriage has imposed upon him the duty of supplying her with necessaries, during the marriage, until she has relinquished or forfeited a right to claim them, by her „ own voluntary act, misconduct or crime. A wife, in that capacity, can no more bind her husband, by her acts, than a *422third person can do so ^although an agency or assent may be, and often is, more readily presumed, from the acts and condition of a wife, than in ordinary cases. The relation between husband and wife is intimate ; in many cases, their wants and duties are equal and common; so that where these exist, the act of one may well be presumed to be the act of both. And where there is a moral duty imposed upon the husband to do what his wife has done, there is no difficulty, generally, in presuming his assent in fact; and where there is a legal duty, the law is said to imply a promise by him, to perform it. Benjamin v. Benjamin, 15 Conn. R. 348.
The facts, in the present case, repel all presumption of an assent or authority, by the husband, to the employment of these plaintiffs in this service. They were employed by the wife, for her sole purpose, in opposition to her husband’s interest, and gave credit, in reality, to her alone. This we see, by the facts reported by the auditors. And we are convinced, by these facts, that the plaintiffs looked for payment to the wife alone. They may have resorted to the formality of charging their fees and disbursements to the defendant; but if so, it was only that they might, with greater hope, resort to the experiment of this action. And it is well settled, and for good reasons, that if the credit be in fact given to the wife alone, the presumption of a contract obligatory upon the husband, expressed or implied, is repelled. In such case, the plaintiffs must be considered as relying upon the honour of the wife, or as having acted gratuitously. Metcalfe v. Shaw, 3 Campb. 22. Bentley v. Griffin, 5 Taun. 356. (1 E. C. L. 131.) Clancy 26. Addison on Con. 617. 2 Kent’s Com. 123.
There having been, as the auditors report, no contract— no assent or authority in fact, by this defendant, authorising this claim ; we are left therefore to examine, whether by the marriage, a marital obligation was imposed upon him to pay it. And here we must look to the common law alone, as we have received it, for such an obligation ; and cannot be influenced, by any amount of public opinion, which modern modes of life and manners may have introduced into society. By this law, the defendant is liable only for necessaries, which the plaintiffs have provided for his wife. This court, hitherto, has not been disposed to adopt into our law, doctrines which sanction separate and conflicting interests between husbands *423and wives, and which encourage the independence of the wife, whifc the marriage continues.
The common law defines necessaries, to consist only of necessary food, drink, clothing, washing, physic, instruction, and a competent place of residence. Whitingham v. Hill, Cro. Jac. 490. Clancy 23. 2 Kent’s Com. 124. And we know of no case, which has professed to extend the catalogue of necessaries, unless it be Shepherd v. Mackoul, 3 Campb. 320. That was an action by an attorney to recover of a husband a bill for assisting his wife to exhibit articles of the peace against him. And Lord Ellenborough said, that the defendant’s liability would depend upon the necessity of the measure ; and if that existed, she might charge her husband for the necessary expence, as much as for necessary food or raiment. It is manifest, that the court considered that case as falling, literally, within the established doctrine of the common law on this subject — the necessity of preserving the life and health of the wife.
The duty of providing necessaries for the wife, is strictly marital, and is imposed, by the common law, in reference only to a state of coverture, and not of divorce. By that law, a valid contract of marriage was and is indissoluble, and therefore, by it, the husband could never have been placed under obligation to provide for the expenses of its dissolution. Such an event was a legal impossibility. Necessaries are to be provided, by a husband for his wife, to sustain her as his wife, and not to provide for her future condition as a single woman, or perhaps as the wife of another man. It was on this principle, that the aforesaid case of Shepherd v. Mackoul was decided ; and the latter case of Ladd v. Lynn, 2 M. & W. 265, in which it was holden, that a husband was not liable for expenses, incurred by the wife, in procuring a deed of separation, proceeded upon the same principle.
It is unnecessary for us to review the many cases in the books, and to which we have been referred on this argument, in which the husband’s liability for necessaries has been re-cognised and enforced. They are all unlike the present, in this fundamental and distinguishing particular; the expenses were incurred to secure the present necessities of a wife, and not to provide for the future and ultimate convenience or supposed happiness of a divorced woman. Indeed* it cannot *424be said truly, that divorces, to the extent allowed by our law, are matters of necessity ; but rather of privilege and favour.
The plaintiffs’ claim derives no strength from the additional fact, that the application for divorce was connected with a claim for the custody of the minor children. The defendant was bound to support these children, while under his care and controul; but not to defray the expenses of an unwilling separation from them, amounting to an emancipation from his parental authority and protection. There has not yet been such an extended obligation of the common law — obligation of parental support.
Upon the facts found by the auditors, we shall advise the superior court that this action cannot be sustained.
In this opinion the other Judges concurred.
Judgment for defendant.