delivered the opinion of the court.
This action was brought in the Jefferson circuit court by Monroe against Williams for a fee of two *517hundred and fifty dollars, which the plaintiff claimed that the defendant was liable for, on the ground that he had treated his wife with so much cruelty as to render it necessary for her to procure a divorce, which she had done, and that the plaintiff had, at her instance, acted as her attorney at law in the action which she had brought in the Louisville chancery court for that purpose. He also alledged that the labor and services rendered by him in that action, as an attorney at law, were reasonably worth the fee claimed by him.
1. When the conduct of the husband is such toward his wife as to render it necessary to exhibit articles of peace against him, or to demand either proteclionor support from the husband, the hu». band is bound to pay the expenses incident thereto, in case she succeeds. (Billings vs. Pilcher and Hauser, 7 3. Mon. 458. j 2. The husband is not bound, according to the common law, to pay the expenses of the wife incurred in a suit for a divorce. (Wing vs. Harlhurt, 3 5 Vcrn. 607; Dorsey vs. Goodman, Wright, 120; Shelton vs. Pendleton, 18 Com; Bishop on Marriage and Divorce,SI l.) This Is changed by the Rev. Stat. $age 207.*517The plaintiff recovered a judgment in the court below for the sum of two hundred and fifty dollars, and the question that arises on this appeal is, can the husband, according to common law principles, be made responsible for the fees of counsel employed by the wife, in an action brought and prosecuted by her for a divorce?
The doctrine is well settled that when the conduct of the husband towards his wife makes it necessary that she should apply to the law for securing either protection or support, the husband will be chargeable for the expenses thus rendered necessary by his own misconduct. Such is the case where the wife finds it necessary for her safety, to exhibit articles of peace against her husband, and also where she is compelled to seek a separate maintenance in the form of alimony. This doctrine was recognized in the case of Billings vs. Pilcher and Hauser, 7 B. Mon. 458. But in the cases mentioned, the marital relation still subsists between the parties, and the husband’s liability arises out of the obligation which the law imposes upon him to support and protect his wife.
He is not, however, according to common law principles, liable to the legal adviser whom his wife may employ in prosecuting a suit for 'a. divorce. The reason is that it is never necessary for her safety as wife to obtain a divorce from him, and when divorced absolutely, he is no longer under a duty to provide for her *518support and protection. (Wing vs. Harlburt, 15 Vern. 607; Dorsey vs. Goodman, Wright, 120; Shelton vs. Pendleton, 18 Conn. 417; Bishop on marriage and divorce, sec. 571.)
3. In suits for divorce as well as for alimony, the husband ie now liable for the extraordinary expenses incurred in obtaining a divorce, which includes a reasonable fee to her counsel aa part of the coala of the auit, to be fixed and ascertained by the court where the divorce is granted. The attorney cannot maintain a suit against the husband for hia services.There is thus a clear and manifest distinction between suits for alimony merely, and suits for a divorce. In the former, the wife seeks to live apart from her husband, for her safety and protection, in consequence of his wrong doing, and he does not thereby become absolved from his duty and obligations as husband. But her object in the latter, is to dissolve altogether the relation that exists between them, whereby he will be discharged from all his obligations as husband to support and protect her.
Although, however, there is no common law obligation on the husband to pay her legal advisers for services rendered by them, in an action brought by her to obtain a divorce, yet he is by statute made responsible for her costs in suits for divorce, as well as in suits for alimony. (Revised Statutes, page 207.)
Inasmuch as this statutory provision applies as well to suits for alimony as for divorce, and as the husband is liable in the former, not only for her ordinary but also for her extraordinary cost, we think that he is liable under this statute for a reasonable fee to her counsel in a divorce case, as part of the cost of the suit. But as it is only as part of the cost that it can be allowed, and as the cost is a mere incident to the suit, its amount must be fixed and ascertained by the court in which the divorce was granted, and allowed as part of the wife’s cost in the -action.
Consequently, the plaintiff cannot maintain this action against the husband, but will have to apply to the Louisville chancery court for an allowance for his services, as part of the costs of the action in the divorce case.
Wherefore, the judgment is reversed, and cause remanded, with directions to sustain the defendant’s demurrer to the plaintiff’s petition.