#### Wilson *vs.*Burr.

An action Bes for the recovery of *counsel fees.*

*A fern covert*who retains counsel in a suit prosecuted by her for a divorce, is not liable to him in an action for his fees, unless subsequent to the divorce she promises to pay.

Under » count for work and labor, &c., as the counsel of and for the defendant, and upon his *295retainer in and about the prosecuting and defending, &c., of divers causes, &c., for the defendant, the plaintiff is entitled to recover his fees as counsel in defending a *third person*upon the retainer of the *defendant.*

'sTeis was a motion to set aside a report of referees. The [ *387 ] plaintiff sued, to obtain compensation for his services as *counsel*in a suit prosecuted by the defendant to obtain a divorce from her husband, *Aaron Burr,*to whom she was married in 1833. The decree for a divorce was entered in July, 1836. The principal witness for the complainant was one *Maria Johnson,*who was indicted in 1835, on a charge of perjury; and apprehending that her conviction would be followed by an indictment for subornation of peijury, the defendant employed the plaintiff as counsel to defend Maria Johnson. The retainer by the defendant of the plaintiff as counsel in the chancery suit was fully proved. The referees allowed the plaintiff a counsel fee of $250, in the chancery suit, and of $200 for defending Maria Johnson; and accordingly made a report in favor of the plaintiff, for $450. The declaration charged that the defendant was indebted to the plaintiff in the sum of $800, for the work and labor, care, diligence and attendance of the plaintiff by him before that time, done performed and bestowed, as the attorney, counsel and solicitor of and for the defendant, and upon her retainer in and about the prosecuting, defending, soliciting and attending of divers causes, suits and business for the defendant; and for certain fees due, and of right payable to the plaintiff in respect thereof. The defendant moved to set aside the report.

*S. Stevens,*for the defendant,

insisted that his client being a *feme covert*at the time of the retainer of the plaintiff as counsel in the chancery suit, an action upon such retainer did not lie against her; the plaintiff must look to the *prochein ami*by whom the defendant appeared and prosecuted her suit. As to the counsel fee in the criminal case, he contended that the plaintiff could not recover for it, under the declaration-in this cause, which charged for services rendered *for the defendant,*and not for a *third person*on the retainer of the defendant. Besides, he insisted that the evidence was not sufficient to show a ratification of the retainer of the plaintiff, after the divorce.

**A. Taler,*for the plaintiff,

contended that the plaintiff being [ *388 ] authorized by statute to commence a suit for a- divorce *in her own name,*she was empowered to retain solicitors and counsel the same as a *feme sole.*The reason why the contracts of *femes covert*are held does not apply to this case. A contract of a *feme covert*is hold invalid, because presumed to have been made under the compulsion of the husband, which is not *296here to be presumed. In support of this proposition he cited 2 *R. S.*144, § 39, and *Bingham, on Infancy and*Coverture, 182, 269.

*By the Court,*

Nelson, Ch. J.

The report must be set aside, unless the plaintiff relinquishes the $250 counsel fee in the chancery suit. The defendant was a *feme covert*when the contract was made, and continued so until the termination of the- suit commenced by her. The statute allowing the suit *in her*name, 2 *R. S.*144, § 39, does not remove the common law inability of the *feme covert*to contract. I admit if a subsequent promise could be shewn, the defendant would be liable. The previous services for her benefit, and at her request, would constitute a moral obligation sufficient to uphold the promise made after the removal of the disability. 5 Taunton, 37. Nothing short of this can give a right of action against her.

The $200 counsel fee for services in the defence of *Maria Johnson*was properly allowed. The defendant retained the plaintiff, and the right to compensation stands on the same footing as if the plaintiff had been retained for the defendant; and the demand is recoverable under the common counts in the same form as if the services had been rendered for the defendant herself. It is true, at the time of the retainer the defendant was *feme covert;*but she was soon after divorced, and it is to be presumed subsequently recognized the services rendered. The report must be set aside unless the plaintiff within twenty days remits the $250, so as to reduce the amount to be recovered to $200 *;*and in that case the motion is denied.

Ordered Accordingly.