should remain an inmate thereof, and awarding to them costs to the amount of $32.84. This appeal was taken therefrom.

Messrs. Paul W. Mahoney and Morris & Hartwell, for appellant:

Section 1502 of the Revised Statutes specifically mentions who are liable for the care of the poor, and in the order in which they are liable; but, among the different persons mentioned, we do not find the name of the husband or wife. Expressio unius est

exclusio alterius.

Broom, Legal Maxims, 607; Pearson v. Lord, 6 Mass. 84: Lesure v. Norris, 11 Cush. 328; Com. v. Berkshire L. Ins. Co. 98 Mass. 29; Erie v. Erie Canal Co. 59 Pa. 178; Pullan v. Cincinnati & C. Air-Line R. Co. Biss. 35, Fed. Cas. No. 11,461.

and prescribe the procedure to be followed. Wis. Stat. 1898, § § 600, 604c, 604q; Laws 1901, chap. 63.

The husband of an insane wife confined in a county asylum is legally liable for her support and maintenance to the county while so confined, and the remedies and procedure provided for in §§ 1500-1505, inclusive, will lie against him.

Sturbridge v. Franklin, 160 Mass. 149, 35 N. E. 669; Hanover v. Turner, 14 Mass. 227. 7 Am. Dec. 203; New Bedford v. Chace, 5 Gray, 28; Charlestown v. Groveland, 15 Gray, 15; Goodale v. Lawrence, 88 N. Y. 513, 42 Am. Rep. 259; Brookfield v. Allen,

Allen, 585; Bangor v. Wiscasset, 71 Me. 535; Davis v. St. Vincent's Inst. for Insane, 9 C. C. A. 501, 15 U. S. App. 432, 61 Fed. 277; Oneida County v. Bartholomew, 82

A husband is not a relative of his wife as Hun, 80, 31 N. Y. Supp. 106; Woodward v. contemplated here.

Brookfield v. Allen, 6 Allen, 585.

The law of this state, § 604d, provides that the state of Wisconsin will pay to every county taking care of its own chronic insane $1.50 per week for each patient so confined. The evidence shows that the county of La Crosse received every year from the state of Wisconsin $1.50 per week for the care of Mrs. Stuesser. For ten years prior to the commencement of this proceeding, the La Crosse County Insane Asylum made a net profit to the county of La Crosse.

The county of La Crosse, as a political organization, has not paid one cent towards the support of Mrs. Stuesser. The evidence shows that she was and is a source of profit, rather than a burden.

Under the common law, a husband is liable for the support of his wife while a member of his family, or when she is absent from him through his fault. But in no case is a husband liable for the support of his wife when she is absent from him without his consent or without his fault.

Worcester, 15 Gray, 19, note.

Financial ability, and not the payment of taxes, should be the test of the husband's liability.

Orono v. Peavey, 66 Me. 60; Bangor v. Wiscasset, 71 Me. 539.

Marshall, J., delivered the opinion of the court:

Several provisions of the statutes seem to have been called to the attention of the trial court to sustain the proceeding, which are relied on now to support the judgment. Each of them will be briefly referred to.

Considerable significance is claimed for § 604q, Rev. Stat. 1898. That makes the property of an insane person, who is kept in any state or county hospital, or by any county otherwise, at its expense, liable for his support, and provides a remedy for the enforcement of such liability. It throws no light on the right of the controversy here, since such controversy does not involve any claim of liability for the support of appellant's wife out of her property.

Section 600, Rev. Stat. 1898, is referred Sturtevant v. Starin, 19 Wis. 268; Brown to as having some significance. It authorv. Worden, 39 Wis. 432.

A husband is not liable for the support of his wife while confined in an insane asylum, because she is placed there for the protection of the public.

Baldwin v. Douglas County, 37 Neb. 283, 20 L. R. A. 850, 55 N. W. 875; Richardson County v. Frederick, 24 Neb. 596, 39 N. W. 621; Richardson County v. Smith, 25 Neb. 767, 41 N. W. 774; Farmington v. Jones, 36 N. H. 271.

izes a district attorney, under the direction of his county board, in the name of his county, to "sue for and collect from the property of any patient maintained at" a state hospital for the insane at the cost of the county, or from any person legally bound to support such patient, the amount charged by the state to such county therefor. Plainly this matter is not within that field. No liability of the county is claimed to have been created by reason of the supMr. Otto Bosshard, for respondents: port of appellant's wife at such hospital; The statutes of Wisconsin confer upon neither was this proceeding brought by the asylum trustees and county authorities the district attorney, nor was it an action withpower and right to compel relief and sup- in the meaning of the statute, nor was its port of persons confined in the insane commencement directed by the county board. hospitals and county asylums of this state,The county judge, in the absence of special

authorization, has no jurisdiction of an ac- the county board of supervisors for all tion under such section, or the circuit court capacity to take jurisdiction by appeal from the county judge's order, except to dismiss the proceeding. Klaise v. State, 27 Wis. 462; Butler v. Wagner, 35 Wis. 54; Miller v. Crawford County, 106 Wis. 210, 82 N. W. 175; Stoltman v. Lake (Wis.) 102 N. W. 920; Birdsall V. Kewaunee County (Wis.) 103 N. W. 1.

moneys so received or collected. The maintenance, under the direction of the trustees of a county asylum for the insane, of a person thereat, who shall have been properly committed thereto, whose support is not properly a public charge, would create a basis for a liability "in their administration of the business of" operating the asylum against the person or property liable for such support, but not a fixed liability constituting an "account, claim, or demand," within the meaning of the statute. That term suggests the existence of a liability fixed in amount and payable.

Next we are referred to § 604e, Rev. Stat. 1898, negativing any liability of the state to any county by reason of the support by such county of any person at its county asylum for the insane, who is not a public charge, and making the "provisions of §§ 1500 and Section 1502, Rev. Stat. 1898, as to poor 1505, both inclusive," applicable to the sup- persons, provides for a proceeding in the port of insane persons. Turning to such name of the town supervisors of the nature sections, we find they refer to the relief and of the one resorted to here for the purpose support of the poor. They declare that the of determining whether the person profather, mother, and children, being of suf- ceeded against is liable to the municipality, ficient ability to care for any poor person and, if so, the amount of such liability, and "who is unable to support himself, shall be when payment should be made. That havliable for such support," and provide the ing been made a part of § 604e, as to the method of procedure to enforce such liabil- insane, it would seem that the proceedings ity; the moving parties being the town to fix the amount of the liability of any persupervisors, the jurisdiction invocable that son for the support of an insane person at of the county court, and the manner thereof a county asylum should be commenced, as being by petition as in this case. It is it was here, in the name of the trustees. argued that the effect of incorporating such The term "proper action," as used in the section into the one relating to the insane law of 1899, evidently refers to an ordinary is to provide a remedy only for enforcing action under the Code, which, without some liabilities for the support by relatives of in- special authorization therefor, cannot be sane poor persons at county asylums and commenced before a county judge. Such those of the particular class mentioned. It term does not refer to a special proceeding seems that would be too narrow a construc- of the sort resorted to here. Moreover, it tion of the incorporating language. The does not authorize any proceedings other express prohibition in § 604e of any credit than in the name the county. from the state in favor of a county for the support of an insane person at a county asylum, the support of whom is not properly a public charge, coupled with writing into it, so to speak, §§ 1500 to 1505, suggests pretty plainly, if not conclusively, that as to a person duly committed to a county asylum, of the class mentioned, the proceedings to enforce the private liability must be under such sections, so far as they are applicable thereto. That would include the jurisdiction to be invoked, the manner of invoking it, as by petition, and the procedure outlined in respect to the matter.

We are referred to chapter 245, p. 407, Laws 1899, as authorizing the commencement of proceedings in the name of the trustees. That makes the trustees of a county asylum for the chronic insane ex officio trustees of the county poor with power "to commence and prosecute in the name of the county any proper action or actions to enforce and collect any account, claim, or demand that may arise or accrue to the county in their administration of the business affairs of such asylum," they to account to

Section 1504, as to the poor, provides for the enforcement of the county judge's order by contempt proceedings, and the following section provides for such enforcement by an action in the name of the town. In the absence of any other guide, the fair inference would be that the same method of enforcement would be proper as to an order requiring a person to contribute to the county for the support of an insane person, the action to be brought in the name of the county; but the law of 1899 furnishes a definite guide, in that it provides that the action shall be so brought.

So the conclusion is reached that, if appellant's wife, while she was at the county asylum for the insane under a proper commitment thereto, was not a proper public charge, because he was by law liable for her support, the proceedings resorted to for the purpose of having such liability, the amount thereof, and the time for its satisfaction adjudicated, were proper. So the county court had jurisdiction of the subject-matter of the proceedings, and on that point there is no infirmity in the judgment.

on

We are not aware of any statute varying is no very great amount of authority on this the common-law liability of a husband to question. The following are, in our judgsupport his wife. Counsel for respondent ment, the most important of the adjudicated does not suggest any which expressly does cases throwing light on the subject. It will so, but argues that our statutory policy be seen by a careful examination of them is that only such insane persons shall be that they are substa tially all one way, cared for at public expense in state or coun- though not entirely in harmony. Delaware ty hospitals as have no property that can be County v. McDonald, 46 Iowa, 170; Noble devoted thereto, and no relatives legally County v. Schmoke, 51 Ind. 416; Switzerbound therefor. This is true, but does not land County v. Hildebrand, 1 Ind. 555; Marsettle the question here at issue. No exten- shall County v. Burkey, 1 Ind. App. 565, sion of the husband's common-law liability 27 N. E. 1108; Davis v. St. Vincent's Inst. for the support of his wife can be predicated for Insare, 9 C. C. A. 501, 15 U. S. App. mere legislative policy shown by the 432, 61 Fed. 277; Watt v. Smith, 89 Cal. liability created by statute, or expressly 602, 26 Pac. 1071; Wray v. Wray, 33 Ala. recognized thereby as to other persons. New 187; Monroe County v. Budlong, 51 Barb. rights in derogation of the common law 493; Goodale v. Lawrence, 88 N. Y. 513, 42 must rest upon unmistakable statutory pro-Am. Rep. 259, Overruling Goodale v. Brockvisions. The common law is not subject to change by mere implication. A statute to accomplish such a change "must be clear, unambiguous, and peremptory." Sedgw. Stat. & Const. Law, p. 318; Meek v. Pierce, 19 Wis. 300; Orton v. Noonan, 29 Wis. 541; Pelican v. Rock Falls, 81 Wis. 428-438, 51 N. W. 871, 52 N. W. 1049. So we are led to inquire whether, by the common law, a husband is liable to support his wife under the circumstances of this case. If not, then § 604e has no application to the matter in

hand.

The liability of a husband for the support of his wife by common-law rules only requires him to do so in the matrimonial home, selected by him,-acting reasonably, -unless she is compelled to seek or accept support elsewhere because of his wilful neglect or refusal to perform his duty or her living apart from him by his consent. Generally speaking, the duty of the husband for the maintenance of his wife does not extend to the support of her while she is away from his home. Sturtevant v. Starin, 19 Wis. 208; Warner v. Heiden, 28 Wis. 517, 9 Am. Rep. 515; Bach v. Parmely, 35 Wis. 238; Brown v. Worden, 39 Wis. 432; Mor genroth v. Spencer, (1905; Wis.) 102 N. W. 1086.

ner, 25 Hun, 621; Bangor v. Wiscasset, 71 Me. 535; Senft v. Carpenter, 18 R. I. 545, 28 Atl. 963; Howard v. Whetstone Twp. 10 Ohio, 365; Springfield Twp. v. Demott, 13 Ohio, 104; Baldwin v. Douglas County, 37 Neb. 283, 20 L. R. A. 850, 55 N. W. 875.

The Iowa, Nebraska, and Indiana cases are to the effect that there is no common

law liability of the husband in cases of this kind. In the New York, Rhode Island, Alabama, and Federal cases liability was adjudged; but in each instance there was an

abandonment of the insane wife, and the de

cision was placed on that ground. The Cali

fornia decision was based on a statutory which has considered and decided the quesliability. We venture to say that no court tion upon its being the turning one, as in the case in hand, or its being sufficiently involved to challenge careful attention to the matter, has held that there is any commonlaw liability of the husband in circumstances similar to those in this case. The basic idea of the common-law rule is that, in the special instances where the wife is permitted to use the credit of her husband for her relief and support, she is his agent ex necessitate legis or ex necessitate rei, failure of duty on his part being the cause It would seem that when a wife, by due of the need. There is no room whatever for process of law, as a charity to her and pro- that idea where the charity of the law intertection to others, is taken from the society venes without fault on the part of the husof her husband without fault of his, and band for the care and protection of the unconfined in an asylum for treatment or safe-fortunate wife, and public safety supersedes ty, or both, there is no refusal by him to support her in his home, even if he is an actor as regards setting the legal machinery in motion for the purpose of affording her the benefit of the public charity and guardianship; nor is there in such a case any consent by the husband to the wife's absence from his home within the meaning of the common-law rule, clothing her with his credit for the purpose of her support. There

him as regards authority and capacity to care for her in his home. Our conclusion is that, till the legislature makes some express provision to the contrary, no recovery can be had of the husband in a case of this sort. Therefore, the judgment appealed from must be reversed.

The judgment appealed from is reversed, and the cause remanded with directions to render judgment in favor of the appellant.

WISCONSIN SUPREME COURT.

Nellie MAGINNIS, Appt.,

v.

KNICKERBOCKER ICE COMPANY et al.,
Respts.

(112 Wis. 385.)

*1. If a person conveys land to another, stipulating that the title shall revert to him upon a failure of such other to fulfil certain conditions specified, a breach of the condition occurs, and such person makes reentry of the property or does something equivalent thereto for the purpose of reclaim. ing the same pursuant to the terms of the grant, in the absence of any equity preventing the legal effect of such facts the title to such property will thereby become revested in

*Headnotes by MARSHALL, J.

such person as absolutely as it was before such conveyance was made.

2. In the circumstances stated, the grantor, having reclaimed the property, may invoke judicial remedies in respect thereto, pleading his title in general terms the same as if no disturbance thereof had occurred by reason of the grant upon condition.

3. If a person conveys property to another, coupled with a condition the breach of which will, if taken advantage of, cause the title to revert to him, the condition being to secure the payment of money, or the performance of an obligation the breach of which can be fairly measured in money by some established rule, the particular thing to be done, or the particular time of the doing thereof, not being made essential and of the very essence of the contract, under some circumstances a court of

NOTE-Equitable relief against forfeiture of lief; but, upon close inspection, it may be doubt

estate.

I. General rules, 833.

II. Conditions precedent, 836.

III. Forfeiture will be relieved when compen

sation can be made.

a. In general, 839.

ful if many principles are applicable to conditions other than those to which they were applied. It has been stated that the matter depends largely upon the discretion of the chancellor, and that seems to be the rule which has the most general application.

Although refusal to permit the enforcement

b. Forfeiture to secure payment of of a forfeiture occurs sometimes upon equitable money.

1. General rule, 839.

principles in actions at law, and the principles which induce courts of equity to afford their

2. Grant or devise on condition of assistance to prevent the forfeiture of an essupport, 841.

tate are frequently applied in actions for the

3. Grant or devise on condition of specific performance of a contract to relieve

MAGINNIS V. KNICKERBOCKER ICE Co. and GORDON V. RICHARDSON both constitute valuable contributions to the law upon this difficult and unsettled subject, in pointing out the fact that no relief can be granted from a forfeiture of an estate for failure to perform a condition unless there is some rule by which the damages for the failure can be accurately measured in money; and the former in emphasizing the additional principle that the default must not be wilful or inexcusable.

The courts have struggled with the question for a long series of years, and have apparently laid down some general principles to be administered in awarding or withholding re

plaintiff from the consequences of his failure to comply fully with all its conditions, the discussions in those cases lead outside the scope of this note, and they will be omitted herefrom, except in a few instances where the discussion is especially valuable. Moreover, the rule which permits relief in case the condition is to secure prompt payment of money is applied frequently to control mortgage foreclosures. But since. in such cases. the rule is applied as well to vest an estate as to prevent its forfeiture, and the matter of mortgage foreclosures is a matter by itself, the rules of which are fairly well known, the cases dealing with that matter are not included here.

When the attempt is made to lay down rules which shall be of general application, great difficulty is encountered. Many judges have tried it only to learn that a slight change of circumstances rendered the supposed general rule wholly inapplicable. All courts of equity agree that equity abhors a forfeiture, and will never give its aid to enforce one, but will, on the contrary, give relief,therefrom whenever such relief is in harmony with equitable principles. This almost of necessity makes of universal application a statement found in a case decided under a Canadian statute, that the question of granting relief is one within the judicial discretion of the court. Coventry v. McLean, 22 Ont. Rep. 1.

Equity has jurisdiction to relieve against forfeitures, but not to enforce them. South Carolina & G. R. Co. v. Augusta Southern R. Co. 107 Ga. 164, 33 S. E. 36.

In Pittsburg & C. R. Co. v. Mt. Pleasant & B. F. R. Co. 76 Pa. 481, in which the forfeiture