This clause provides for three distinct species of counter-claim, viz;

1st. A cause of action existing in favor of the defendant and against the plaintiff and arising out of the contract set forth as the foundation of plaintiff's claim; or,

2nd. A cause so existing arising out of the transaction set forth as the foundation of plaintiff's claim; or,

3rd. A cause so existing connected with the subject of the action.

And in the cases under discussion the counter-claim must be either of the second or third species, and will never be of the first, that is, it must either arise out of the "transaction" forming the foundation of the plaintiff's claim or else it must be "connected with the subject of the action".2

In order to understand the bearing of these provisions of the code we must have a clear appreciation of what is meant by the term "transaction" and phrase "subject of the action".

The term "transaction" has been given a broader meaning than the word "contract," and includes any occurrence between the parties that may become the foundation of an action.3 Or, the transactions meant are those which, although not precisely contracts yet, being dealings or business matters of some kind, would entitle a party to a remedy in an action ex contractu, and would entitle a defendant in such action to recoup any damages for a cause of action arising out of such dealings or matters; or, it includes all the facts and circumstances out of which the injury of which plaintiff complains arose."

4

It refers to the actual facts and circumstances from which the right results and not to the form and manner in which the facts are averred. Therefore if the "transaction" originated in contract, a breach of contract may be set up by defendant, as a counterclaim, even though plaintiff's suit be for tort.7 Nor can the plaintiff by suing in tort, where he has an election to sue either in tort or on contract, deprive the defendant of the right

2 Xenia Branch Bank v. Lee, 7 Abb. 372.

3 Bliss Code Pld. Sec. 125.

4 Barhyte v. Hughes, 33 Barb. 320.

5 Ritchie v. Hayward, 71 Mo. 560.

6 Pom. on Rem. § 788.

7 Ante, Ritchie v. Hayward.

to interpose a counter-claim.8 As to what constitutes the "subject of the action" the decisions are not at all harmonious, the following, however, given by a well known writer is doubtless correct, viz. :

"In an action for a tort, the injury complained of is the wrong, and the subject of the action would be that right, interest, or property which has been affected—as, in replevin or trover, the property taken; for libel or slander, the character or occupation; for an injury to a servant, the service; for the seduction of, or for harboring, a wife, the marital relation; for negligence, the duty, property, or person in respect to which the negligence occurred; for false imprisonment, the plaintiff's liberty; and for a trespass upon property, the property."9 Therefore if the defendant's cause of action has an immediate and direct connection with the right, interest, or property affected, he is justly entitled to plead it as a counter-claim.

The following examples of cases of tort wherein the question of counter-claim arose and was discussed, will fully illustrate the subject. Thus, in a suit for the conversion of certain gunny sacks, a counter-claim for damages caused to defendant by plaintiff's breach of contract to furnish potatoes of certain quality in the sacks in question was held proper. So, in a suit to recover the value of certain bonds, received by defendant as attorney for plaintiff, a counter-claim for services in procuring the bonds to be issued to plaintiff was admitted."1

10

And, where certain property was obtained under a contract of employment, the defendant was allowed to counter-claim for his services and expenses as plaintiff's agent, in an action for converting the goods.12

The owner of a quantity of petroleum delived it for storage to a company formed for the purpose of transporting and storing such oil, under an agreement that certain allowances should be made for evaporation and certain charges be paid for storing. In an action for its conversion the allowance agreed

8 Pom. on Rem. Sec. 770; Thompson v. Kessel, 30 N. Y. 383; Cow Run Tank Co. v. Lehmer, S. C. Ohio, 20 Cent. L. J. 296; Gordon v. Brune, 49 Mo. 570. But see contra Scheunert v. Kaehler, 23 Wis. 523.

9 Bliss Code Pid. § 126.

10 71 Mo. 560.

11 Judah v. Trustees, etc. 16 Ind. 56.

12 Bitting v. Thaxton, 72 N. C. 541.

for evaporation and the amount due for storage were held proper subjects of counterclaim by the company. 13

And, in an action in the nature of trover by a plaintiff who had endorsed notes or bills of exchange, brought to recover the value thereof from a defendant in whose possession they were and who claimed title through the plaintiff's endorsement, the defendant was permitted to set up title in himself, demand of payment, protest and notice, and ask by way of counter-claim a judgment against the plaintiff as endorser.14 So, in an action of replevin to recover the possession of personal property delivered to defendant under a contract, it was held that defendant might set up as a counter-claim, a lien arising in his favor by virtue of the same contract." And, in replevin for a horse the defendant was allowed to counter-claim damages for fraudulent and false representations in the sale of land, for which the horse had been traded.16 So, in an action to recover damages caused to a canal boat by the breaking of an embankment, the defendant was permitted to counter-claim the damages caused to the canal by the plaintiff's negligence.17 And, a mortgagee of personal property who had peaceably taken possession of the same before forfeiture, in an action for trespass might counter-claim his claim under the mortgage, as the mortgage and the mortgagee's claim there under were connected with the cause of the action." 18

But, where the complaint charges the wrongful conversion of the proceeds of goods sold by defendant on commission, the defendant cannot set up a counter-claim for damages caused by plaintiff's breach of stipulations contained in the agreement under which the goods were delivered, but not having any reference to the very goods in question. 19 The court here took the ground that the tort was the subject of the action and the sole foundation of plaintiff's claim and that in such actions a counter-claim could not be pleaded. It is difficult however, to reconcile

13 Cow Run Tank Co. v. Lehmer, Ante.

14 7 Abb. 372, Ante.

15 Brown v. Buckingham, 11 Abb. 387.

16 Walsh v. Hall, 66 N. C. 233.

17 McArthur v. Green Bay Canal Co., 34 Wis. 139.

18 Brown v. Phillips, 3 Bush. 656.

19 Schenert v. Kaehler, 23 Wis. 523.

the reasoning in this case with a subsequent case decided by the same court. 20

Damages done to trespassing cattle in driving them out is not a proper subject of counter-claim in an action for the trespass.21

Nor, is a libel published of and concerning the defendant, a proper counter-claim in an action for damages for an assault and battery.22 In an action for an assault and battery an assault and battery committed upon the defendant by the plaintiff at the same time and place cannot be pleaded as a counter-claim.28 The contrary has been held

in Kentucky, however. 24

From the foregoing examples it will be observed that the counter-claim allowed were in actions for injuries to some right or interest connected with property and that with but a single exception, none were allowed in actions for personal torts, and it is difficult to conceive of a counter-claim ever arising out of such torts.

Lastly, the framers of our codes labored to simplify the practice and to lessen litigation and in providing for the counter-claim they no doubt intended that parties should determine in each suit all matters in controversy between them, which could legitimately be included therein, keeping in view their substantial rights. This object can only be attained by giving a broad and liberal interpretation to this provision of the code.

Lincoln, Neb.

H. J. WHITMORE.

MARRIED WOMEN'S ATTORNEYS AT

LAW.

Under this title two closely related subjects will be discussed, the first involving the right of a married woman to act by attorney, and the second, the rights of her attorneys to fees.

I. APPOINTMENT OF ATTORNEYS AT LAW BY MARRIED WOMEN.

1.-At law, independently of statute.-At common law a married woman could not ap

20 34 Wis. 139.

21 Lovejoy v. Robinson, 8 Ind. 399.

22 McDougal v. McGuire, 35 Cal. 274. 23 Schnaderbeck v. Worth, 8 Abb. 37. 24 Slone v. Slone, 2 Met. (Ky.) 339.

1 Griffith v. Clarke, 18 Md. 464, 467; Hubbard v. Barcus, 38 Md. 166, 174; Kerchner v. Kempton, 47 Md. 568, 589; Whitmore v. Delano, 6 N. H. 543, 546; First v. Garlinghouse, 53 Barb. 615; Phillips v. Burr, 4 Duer, 113, 114; cases infra, n. 51.

2 Wright, 2 Harr. Del. 49; Templeton v. Crain, 5 Me. 417, 418.

3 Fox v. Tooke, 34 Mo.;509, 510.

4 Phillips v. Burr, 4 Duer, 113, 114; Kiddestin v. Meyer, 2 Miles, 295.

5 Henchman v. Roberts, 2 Harr. Del. 74; Patton v. Stewart, 19 Ind. 233, 237; Button v. Wilder, 6 Hill, 242; First v. Garlinghouse, 53 Barb. 615; Shallcross v. Smith, 81 Pa. St. 132, 133; Stevens v. Dubarry, Minor, 379.

6 Wallingsford, 6 Har. &¡J. 485, 489.

7 Norris v. Lantz, 18 Md. 260, 269; Hall v. Callahan, 66 Mo. 316, 324.

8 See Kerchner v. Kempton, 47 Md. 568, 588; Travis v. Miller, 55 Miss. 557, 566.

9 Major v. Symmes, 19 Ind. 117, 118, 119; Porter v. Haley, 55 Miss. 66, 69; King v. Mittalberger, 50 Mo. 182, 185.

10 Krone v. Linville, 31 Md. 138, 147; Kerchner v. Kempton, 47 Md. 568, 588; Wolf v. Banning, 3 Minn. 202, 204; Collard v. Smith, 13 N. J. Eq. 43, 45.

11 See Myers v. Griffis, 11 Rich. 560, 564.

12 Stevens v. Reed, 112 Mass. 515, 517; Porter v. Haley, 55 Miss. 66, 70; Powers v. Potter, 42 N. J. L. 442, 445.

13 Owen v. Cawley, 36 N. Y. 600, 605.

14 Major v. Symmes, 19 Ind. 117, 120; Porter v. Haley, 55 Miss. 66, 69; Powers v. Totten, 42 N. J. L. 442, 445; Leonard v. Rogan, 20 Wis. 540, 542.

suit or perform legal services respecting such property, for it is necessary to the enjoyment of rights that one should be able to prosecute and defend them. 15 The appointment of attorneys at law is governed substantially by the same rules as the appointment of any other agent; 16 and when a married woman can act personally under the statute she can generally act through an agent.17

4 How far bound by Attorney's acts.—In all cases where a married woman can appoint an attorney, she is bound by his acts as an unmarried woman would be: 18 by his laches," his withdrawal of pleas,20 his settlement or dismissal of the suit.2 21

II. COMPENSATION OF MARRIED WOMEN'S ATTORNEYS.

An attorney who has acted on behalf of a married woman, may look for his fees (1) to her husband, or (2) to her trustee or next friend, or (3) to her property or herself

1.-The husband's liability.-Since a wife always sued and was sued jointly with her husband at common law,22 and since he had full control of the suit and the right to employ counsel for them both,23 the payment of the fees naturally fell upon him. But when he acted in such a way as justified her in suing him, she could proceed alone, and the question arose whether he was not liable for the expenses of the suit on the ground that they were necessaries.24 It has been held that when a wife sues out a peace warrant against her husband, or defends herself in a

25

15 Powers v. Totten, 42 N. J. L. 442, 445. 16 See Leonard v. Rogan, 20 Wis. 540, 542.

17 See Paine v. Farr, 118 Mass. 74, 76; Hall v. Callahan, 66 Mo. 316, 324; Bickford v. Dare, 58 N. H. 185, 186.

18 See Glover v. Moore, 60 Ga. 189, 192; Keith, 26 Kan. 26, 36; Hollingsworth v. Harman, 83 N. C. 153, 155; Cayce v. Powell, 20 Tex. 767, 771.

19 Cayce v. Powell, 20 Tex. 767, 771. 20 Glover v. Moore, 60 Ga. 189, 192.

21 Hollingsworth v. Harman, 83 N. C. 153, 155.

22 Porter v. Bank, 19 Vt. 410, 417. See Kimbro v. First, 1 McAr. 65; Coward v. Pulley, 9 La. An. 13; Tucker v. Scott, 3 N. J. L. 955; Howland v. Fort, 8 How. Pr. 505; McIntire v. Chappell, 2 Tex. 378, 379.

23 Foxwist v. Tremaine, 2 Saund. 212, 213; Kerchner v. Kempton, 47 Md. 568, 588; Beach, 2 Hill, 260; Frazier v. Felton, 1 Hawks, 231, 237; Vick v. Pope, 81 N. C. 122, 126.

24 Necessaries discussed, Stewart M. & D. §§ 180, 389, 455.

25 Shepherd v. Mackou, 3 Camp. 326, 327; Stewart M. & D. § 389, or for restitution of conjugal rights, Wilson v. Ford, L. R. 3 Exch. 63.

similar proceeding against her by him,26 or when she sues for a separate maintenance,27 her legal expenses are necessaries for which her husband is liable. So her expenses in bringing or defending a divorce suit, in cases where she had a reasonable ground of action or defense, 28 are held to be necessaries in 32 England, Georgia, Iowa, Kansas, and Maryland; while the contrary is the rule in Alabama, Connecticut, Illinois, Indiana, 37 Kentucky, Massachusetts, New Hampshire,40 Ohio,41 Tennessee, 42 and Vermont. 43 In divorce cases the husband is made to pay counsel fees, just as he is to pay alimony."

29

38

30

31

2.-The trustee's or next friend's liability. The trustee of a married woman's separate property may employ an attorney, and though he is personally bound to compensate him unless there is some agreement that he shall not be so liable, 45 he may repay himself out of the estate.46 So the reason for the joinder of a next friend with a married woman in her suits is that there may be a party responsible for costs,47 and in those cases where a

26 Warner v. Heeden, 28 Wis. 517, 519.

27 Williams v. Monroe, 18 B. Mon. 514, 518; Stewart M. & D. § 179.

28 Handy v. McCurley, 62 Md. 19 Cent. L. J. 253; Brown v. Ackroyd, 5 El. & B. 819, 827, 829, 25 L. J. Q. B. 193, 34 Eng. L. Eq. 214, 217.

29 Ottaway v. Hamilton, L. R. 3 C. P. D. 393, 397, 399; Hooper, 33 L. J. (N. S.) 300, 305; 2 De Gex J. & S. 91; Stocker v. Pattrick, 29 L. T. (N. S.) 507; Wilson v. Ford, L. R. 3 Ex. 63; Rice v. Shepherd, 12 Com. B. (N. S.) 332, 333; Brown v. Ackroyd, 5 El. & B. 819, 827, 829, 25 L. J. (Q. B.) 193, 34 Eng. L. & Eq. 214, 217.

30 Glenn v. Hill, 50 Ga. 94, 96; Sprayberry v. Merk, 30 Ga. 81, 82.

31 Porter v. Briggs, 38 Iowa, 166. Compare Johnson v. Williams, 3 Greene, 97, 99.

32 Gossett v. Patten, 23 Kan. 340, 342.

33 Handy v. McCurley, 62 Md. —, 19 Cent. L. J. 253,

254.

34 Parsons v. Darrington, 32 Ala. 227, 255.

35 Spelton v. Pendleton, 18 Conn. 417, 433; Cooke v. Newell, 40 Conn. 596, 598.

36 Dow v. Eyster, 79 Ill. 254, 256.

37 McCullough v. Robinson, 2 Ind. 630.

38 Williams v. Monroe, 18 B. Mon. 514, 517, 518.

39 Coffin v. Durham, 8 Cush. 404, 405.

40 Morrison v. Holt, 42 N. H. 478, 480; Ray v. Adden,

50 N. H. 82, 84, 85.

41 Dorsey v. Goodenow, Wright, 120.

42 Thompson, 3 Head, 527, 529.

43 Wing v. Hurlburt, 15 Vt. 607, 615.

44 Stewart M. & D. § 389; Dow v. Eyster, 79 Ill. 254, 255.

45 See Gill v. Carmine, 55 Md. 339, 342. 46 Noyes v. Blakeman, 3 Sandf. 531, 544. 47 Harper v. Whitehead, 33 Ga. 138, 144.

married woman sues by next friend he is liable for the counsel fees.48

51

3.-The wife's liability, in personam and in rem. -At common law, as a general rule, a married woman could make no contract at all,49 and could not appear by attorney in a suit unless he were appointed by her husband,50 and therefore her contract to pay counsel fees was absolutely void, and she could not even, according to the better settled rule, ratify such a contract after the dissolution of her marriage.52 But if an attorney collected moneys belonging to her, he could retain a reasonable part thereof as compensation for his services,53 though he could not have recovered anything in any suit against her. She could, however, charge. her equitable separate estate in equity for fees, just as she could charge it for any other debt of hers,55 provided that she complied with the rule prevailing in the particular State as to the mode in which the charge had to be made,56 for example, that the contract was made with express reference to her said estate,57 or was for its benefit,58 and provided that the property so charged was property over which she had the power of disposition.59 Under a statute authorizing a married woman to contract generally, there is no reason why she could not contract for the payment of counsel fees, 60 and when she is authorized to

48 Brawner v. Bell, 30 Ga. 334, 335; Baker, 1 Bailey Eq. 165.

49 Norris v. Lantz, 18 Md. 260, 269.

50 Fox v. Tooke, 34 Mo. 509, 510; Phillips v. Burr, 4 Duer, 113, 115; Frazier v. Felton, 1 Hawks, 231, 237. 51 See Drais v. Hogan, 50 Cal. 121, 128; Pierce v. Osman, 75 Ind. 259, 260; Putnam v. Tennyson, 50 Ind. 456, 458; Thompson v. Warren, 8 B. Mon. 488, 491; Porter v. Haley, 55 Miss. 66, 70; Musick v. Dobson, 76 Mo. 624, 625; 43 Am. Rep. 780; Whipple v. Giles, 55 N. H. 139, 140, Wilson v. Burr, 25 Wend. 386, 388; Davis v. Burnham, 27 Vt. 562, 568.

52 Musick v. Dobson, 76 Mo. 624, 625, 43 Am. Rep. 780; Stewart M. & D., § 469; Stewart H. & W. §§ 366, 368, 463.

53 Thompson v. Warren, 8 B. Mon. 488, 491. 54 See Davis v. Burnham, 27 Vt. 562, 568.

55 Pfirshing v. Falsh, 87 Ill. 260, 262; Major v. Symmes, 19 Ind. 117, 118, 119; Porter v. Haley, 55 Miss. 66, 69; King v. Mittalberger, 50 Mo. 182, 185; Owen v. Cawley, 42 Barb. 105, 118, 36 N. Y. 600, 605; Wilson v. Burr, 25 Wend. 386, 388; Davis v. Burnham, 27 Vt. 562, 568.

56 Discussed in Stewart, H. & W. §§ 206, 207.

57 See Major v. Symmes, 19 Ind. 117, 119.

58 See King v. Mittalberger, 50 Mo. 182, 185.

59 See Cozzens v. Whitney, 3 R. I. 79, 83; Pierce v. Osman, 75 Ind. 259, 260.

60 See Worthington v. Cooke, 52 Md. 297, 308; Edwards v. Schoeneman, 104 Ill. 278 283.

contract with respect to her property, a contract for legal services to the same would be valid.61 So would such a contract be impliedly authorized by a statute securing her property to her separate use and control.62 So by implication, a statute authorizing her to sue and be sued alone, empowers her to employ an attorney to take charge of her said suits.63 Whether, when she may under such statutes employ counsel, she binds herself personally or only her property, and whether her liability is to be enforced in equity or at law, are questions relating to procedure on which there is no substantial agreement in the different States; 64 but, in this respect her contracts for counsel fees are governed by the same rules as her other contracts.65 When a wife is liable for family expenses, how far counsel fees are a family expense must depend on the particular circumstances of the DAVID STEWART.

case.

66

Baltimore, Md.

61 See Pfirshing v. Falsh, 87 Ill. 260, 262; Owen v. Cawley, 36 N. Y. 600, 605.

62 Major v. Symmes, 19 Ind. 117, 118; Porter v. Haley, 55 Miss. 66, 69; Powers v. Totten, 42 N. J. L. 442, 445; Leonard v. Rogan, 20 Wis. 540, 542.

63 Stevens v. Reed, 112 Mass. 515, 517. See Glover v. Moore, 60 Ga. 189, 192; Powers v. Totten, 42 N. J. L. 442, 445.

64 Compare Major v. Symmes, 19 Ind. 117, 120; Porter V. Haley, 55 Miss. 66, 69; Leonard v. Rogan, 20 Wis. 540, 542.

65 See Williams v. Huqunin, 69 Ill. 214, 218; Huyler v. Atwood, 26 N. J. Eq. 504, 506; Kronscup v. Rontz, 51 Wis. 204, 218.

66 Fitzgerald v. McCarthy, 55 Iowa, 702, 705.

MARINE INSURANCE-USAGE-CONTRACT

EMERY v. BOSTON MARINE INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Janua ry, 1885.

1. Marine Insurance-Evidence-Usage to make Application in Writing.-In an action against a marine insurance company, upon the issue whether a contract of insurance has been made, if the plaintiff, who holds a running policy containing a condition, "no risk to be binding until accepted by the company and indorsed herein," has testified to the making of an oral application for insurance on a particular risk and its indorsement on the policy and to the defendant's assent thereto, it is not competent for the defendant to prove a usage to make such applications in writing, either as tending to show an improbability of the truth of the plaintiff's testimony, or that the oral application, if made, was merely a preliminary negotiation not designed to override the usage.

4.

Authority of Secretary to make Contract Inferred from what Circumstances. Evidence that the secretary of an insurance company was, after the president, the chief officer in charge; that the president sometimes signed policies in blank, and left them in order that the secretary might make contracts and deliver the policies, and that the president supposed that the secretary had received applications and made indorsements on policies, that he [the president] did not intend that business should, or think it did stop, in his absence, would authorize the jury to infer authority on the part of the secretary to make a contract of insurance.

5.

Case in Judgment.-The plaintiff having

a running policy issued to him by the defendant company, containing the condition "no risk to be binding until accepted by the company and endorsed herein," testified that he told the secretary to "enter up $10,000 on the cargo of the Bridgport, and I will bring in the policy and have it entered up after the invoice arrives," and that the secretary said "all right." This the latter denied. Held, 1. That it was for the jury to say what the conversation meant, and whether a contract was thereby proved. 2. That it was also for them to say what would be a reasonable time after the arrival of the invoices to bring them to the defendant. 3. That if, within such time, the defendant disclaimed having any contract with the plaintiff, there was no occasion for him afterwards to bring the invoices.

ALLEN, J., delivered the opinion of the court: The plaintiff sought to escape from the effect of the provision in the policy, "no risk to be binding until accepted by the company and indorsed herein," by proof of an oral contract; and the defendants, while denying that such oral contract has been made, sought to confirm their view by calling a witness familiar with the customs and usages of the business of marine insurance in Boston, and asking him the question "whether there is any usage as to the matter of making written applications for marine insurance." The question was excluded; and the grounds upon which the defendant urges its competency, are that the evidence of the usage would have tended to show an improbability of the truth of the plaintiff's testimony as to the making of oral applications for the insurance, and that the oral applications, if made, were mere preliminary negotiations, and not designed to override the usage. The bill of exceptions contains no statement of what the defendan offered or expected to show by this witness, or that they excepted to the exclusion of the testi