Bliss

The plaintiff seeks by this action to recover the rent of certain lands demised by him to the defendant. The defendant malees no issue upon his liability for the amount claimed, but alleges in his answer that the plaintiff is only the agent of his wife, who is the owner of the land, and prosecutes the action in her behalf; that the demised land is contiguous to certain lands of his own; that he had constructed a division fence between the contiguous tracts, and that subsequently thereto, and prior to the commencement of the action, the plaintiff’s wife had inclosed her tract and made use of said division fence, and that by virtue of section 841 of the Civil Code, she thereby became liable to him for her just proportion of the division fence. He therefore pleads the amount of this liability as a defense or counterclaim to the demand of the plaintiff. The cause was tried by the court, and findings of fact were made in accordance with these averments, fixing the amount of eight hundred and ninety-one dollars and ten cents as the just proportion of the value of the fence to be paid by her, and rendered judgment in favor of the plaintiff for the difference between the amount claimed in…

I concur in the judgment, upon the ground that the counterclaim was upon a liability created by law and was not barred short of three years. The decision upon a former appeal, that it was a cause of action arising out of contract within the law of setoff and counterclaim, is not at all inconsistent with this view. A liability may be at the same time a statutory and contract liability—and so it has been held by this court with respect to the liability of stockholders. It is a statutory liability as to the statute of limitations (Moore v. Boyd, 74 Cal. 167 ), and a contract liability as to the right of attachment (Kennedy v. California Sav. Bank, 97 Cal. 93 ; 33 Am. St. Rep. 163 ), and as to the law defining the jurisdiction of justices of the peace. (Dennis v. Superior Court, 91 Cal. 548 .)