Kirby v. Kirby

1 Paige Ch. 566

• Court: New York Court of Chancery
• Decided: August 4, 1829
• Status: Published

Opinion

The Chancellor :—I have heretofore decided, in one of these matrimonial cases, that I would not permit the solicitor’s claim for costs to stand in the way of a reconciliation between a husband and his wife. This is not exactly a case of that description; but it is an agreement on her part to discontinue proceedings instituted to dissolve the marriage contract, upon receiving a separate maintenance. In these cases the wife is, by the statute, authorized to proceed as a feme sole. She has therefore a right to compromise the suit in the same manner as any other parly, although the court will always look into the ease, so far as to see that she has not been overreached or imposed upon by her husband, in the settlement. In this case there is no pretence that she has not acted understandingly, and done that which was, probably, most for her own benefit. She applied to her solicitor to discontinue the suit, but he refused to do it unless his costs *were first paid. After consulting with her friends, and in the presence of her sister, and with her approbation, she completed the compromise, and ordered her husband to be released from prison. The sheriff was bound to discharge him, unless the solicitor had some claim which he had a right to enforce, without the consent of the wife. In Martin v. Hawks, (15 John. Rep. ,) and other cases where the attorney has been permitted to enforce the collection of costs against the adverse party, without the consent of his client, there was a judgment or decree for costs, which gave the attorney a vested right to them. In this case it does not appear that any costs ever would have been given. The order for a monthly allowance was not an order in favor of the solicitor; and it was only directed to be paid by the receiver out of the estate which might come into his hands. The wife therefore had a perfect right to discontinue the suit, and discharge her husband; and it was the duty of the sheriff to release him on production of the order; (Martin v. Francis, 2 Barn. & Ald. 402.

The petition must be dismissed, and as the sheriff has done nothing more than he was legally compelled to do, the petitioner must pay the costs of opposing this application.