there was any evidence that Charles C. had knowledge that Patterson was to sign the note.

The evidence relied upon by the plaintiff is a portion of the intestate's testimony given upon a former trial, and which was to the effect that he told Charles C. that Patterson was to sign the note, and that Charles C, did not object. That portion of the intestate's testimony upon the former trial was read in evidence by the plaintiff, against the defendants' objection upon the trial from the rulings in which the appeal was taken. The defendants had, as they were entitled to do, read certain portions of the intestate's testimony as his admissions. The admissions, as claimed. by the defendants, were to the effect that the intestate, when he obtained Patterson's signature, did not inform him that the principal, Bean, had declined to give a note with him as surety. After the defendants had read so much of the intestate's testimony as they desired to read as admissions, the plaintiff insisted upon reading the rest, and the court allowed him to read a certain portion but under the express ruling that it should be considered by the jury only as far as it had the effect to explain or modify the intestate's admissions. In the portion thus read by the plaintiff appears the statement made by the intestate upon the former trial, that he told Charles C. that Patterson was to sign the note, and Charles C. did not object. Now it is very clear that we have no evidence of what the intestate told Chares C., if anything. What was admitted only purports to be evidence of what the intestate testified to upon the former trial. As evidence of the fact sought to be established, it was inadmissable. As evidence of such fact it was not admitted.

The instruction asked, then, was based upon evidence which in no proper sense was in the case. It was, we think, properly refused. Affirmed.

EVIDENCE-PRACTICE.

NEW YORK COURT OF APPEALS.

PINNEY, ADM'RX v. ORTH ET AL.

April 11, 1882.

One S., a.witness, having testified to certain conversations between defendant O. and plaintiff's testator, at which he was present, O. was called and asked if he ever had any conversation with testator at which S. was present, and in which defendant made certain statements testified to by S. Held, That the questions were properly excluded under 829, as they related to what was said between O. and testator, and not merely to the presence of S. at the interview.

A surviving party is not precluded by? 829 from testifying to extraneous facts and circumstances which tend to show that a witness who has testified to a transaction or communication between the survivor and the deceased has testified falsely, or that it is impossible that his statement can be crue; and so long as he refrains from testifying as to anything that passed or did not pass personally between himself and the deceased, it is not a valid objection that the facts which he states bear on the issue whether the transaction in question took place, or upon the truth of the testimony given to prove it.

The appellate court attempted to cure an error in the rejection of evidence offered to contradict the evidence of a

witness as to a certain item by requiring plaintiff, as a condition of affirmance, to deduct the amount allowed for such item. The evidence sought to be contradicted was only a portion of the witness' testimony. Held, error; such course is only proper where the evidence of the witness relates solely to the item rejected, and his whole testimony can be stricken out without affecting the residue of the recovery.

This action was brought by P., plaintiff's intestate, to recover for professional services as attorney for defendants. On the trial one S., á witness for plaintiff, and formerly managing clerk for P., who was then dead, testified to certain conversations between P. and the defendant O., which were material to the issues, at which conversations S. stated that he was present and that they took place at the office of P. O. was called as a witness on his own behalf, but the referee refused to allow him to testify as to what was said or what was not said between him and P. at those conversations. O. was then asked whether he ever had any conversation with P. at his office at which S. was present, and at which O. made certain statements to P., to which S. had testified. These questions were excluded.

lated to what was said between O. and the deHeld, No error; as the questions excluded receased, and not merely to the fact of S.' presence at an interview between them.

The primary intent of § 829 of the code, prohibiting the examination of a party as a witness in his own behalf against the executor, etc., of a deceased person, "concerning a personal transaction or communication between the witness and the deceased person," is to prevent a surviving party from proving by his own testimony a personal transaction or communication between himself and a deceased person, but it does not preclude the survivor from testifying to extraneous facts or circumstances which tend to show that a witness who has testified affirmatively to such a transaction or communication has testified falsely or that it is impossible that his statement can be true, as for instance, that the survivor was at the time absent from the country where the transaction is stated to have occurred, and that so long as the survivor refrains from testifying as to anything that passed or did not pass personally between himself and the deceased, it is not a valid objection to his testimony that the facts which he states bear upon the issue whether or not the personal transaction in question took place, or upon the truth of the testimony by which said transaction is sought to be proved against him.

Certain questions were asked defendant O., touching what the deceased did in a certain case; whether he put in an appearance, drew an answer, as testified to by S. These questions were excluded. The general term held that such exclusion was erroneous, as the questions did not relate to personal transactions with the deceased. The court attempted to cure this error by requiring plaintiff, as a condition upon which the judgment should be affirmed, to deduct from the recovery the amount allowed for services in that suit.

Held, Error; as this ruling deprived the defendants of any advantage they might have from a material contradiction of the plaintiff's witness. Such a course would be proper only in case the evidence of the witness related solely to the item rejected, and his whole testimony could be stricken out without affecting the residue of the recovery.

Judgment of general term, modifying and affirming as modified judgment for plaintiff, reversed and new trial ordered.

Opinion by RAPPALO, J. All concur, except EARL and DANFORTH, J. J., dissenting.

RAILROAD-ACCIDENT-DAMAGES.

SUPREME COURT OF PENNSYLVANIA.

PATTON ET AL.,

V.

PITTSBURGH, CINCINNATI & ST. LOUIS R.W. Co.

In an action brought by the widow and minor children to recover damages for the death of an employee of a railroad company who was killed in West Virginia, the court, in answer to plaintiffs point, instructed the jury, unqualifiedly, in the language of the point, that the action could be maintained if the statute in force in West Virginia, relating to cases of death caused by negligence was similar to or substantially the same as the statute on the same subject in Pennsylvania, and added, at the close of the charge, "The question of law as to the effect of the statute of West Virginia we will reserve for further consideration." The verdict of the jury, after considering the facts, was for plaintiff, "subject to the opinion of the court on a question of law reserved."

After verdict and before judgment the plaintiffs moved to amend the record by adding the naine of the legal plaintiff, which motion was refused. Held, to have been error. Under the Act of 1852 the courts have power, in any stage of the proceedings, to change or add the names of parties so as to make the record conform to the issue that was tried, and no verdict ought to be set aside where there has been a full trial upon the merits and the formal addition of a party will cure the defect of the record. TRUNKEY, J.

In answer to the plaintiffs' third point the jury were unqualifiedly instructed that this action can be maintained if the statute in force in West Virginia, relating to cases of death caused by negligence, was similar to or substantially the same as the statute on the same subject in Pennsylvania. The only statute of West Virginia, given in evidence, is the fifth and sixth sections of an Act relating to actions where death of a person was caused by wrongful act, neglect or default, which provides among other things, that "every such action shall be brought by and in the name of the personal representative of such deceased persons and the amount recovered in every such action shall be distributed to the parties, and in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate." What the law provides in relation to said distribution was not proved. The learned judge in the charge said it was his impression that the statute in West Virginia was so different from the statute in this State, that the action would not lie, but instructed the jury that the fact of Mr. Patton having been killed in West Virginia

made no difference so far as they were concerned. At the close of the charge he adds these words: "The question of law, as to the effect of the statute of West Virginia, we will reserve for further consideration." The verdict was for the plaintiffs for $4,900, "subject to the opinion of the court on a question of law reserved." In an opinion subsequently filed, two questions of law are considered as having been reserved: 1. "Can the plaintiffs recover under the West Virginia Statute; and 2. Is there sufficient evidence. of negligence to justify a vedict against the defendant?" Neither of these are shown by the record. Of the first it is said: “I do not think the statutes are substantially alike. In this State the right of action by our statute is in the widow and children, or parents. In the West Virginia Statute the right of action is in the administrator. We think this is decisive of the question; and as the action is by the widow and children, it cannot be maintained."

Before the argument of the question a motion had been made for amendment by adding the name of the administratrix a legal plaintiff, for use, in writ, record and pleadings, and at the present will be considered as having been allowed. If it was material to determine whether the statutes were substantially alike, it was for the court; but it was submitted to the jury to determine, and if they were, it was ruled that the action could be maintained. Neither the fact nor question of law set forth in plaintiffs' third point was reserved. The verdict was as indefinite as the remark at the close of the charge.

Every reservation of a question should place distinctly upon the record what the point is which is reserved, and the state of facts out of which it arises: Ferguson v. Wright, 11 P. F. Smith. 258; Wilde v. Trainor, 9 Ibid, 439. All the legal propositions had been absolutly ruled; and what was distinctly stated in the so called reservation? It may be conceded that the court intended the precise question substantially stated in the opinion, but the record does not show that. On the contrary, it shows that question was affirmed, if the jury found the two statutes substantially of the same import. Judgment might be entered upon the verdict, but most cases which have been reviewed in this court where the point was not well reserved, the cause has been sent back for another trial. A judgment upon this verdict for the reason that the record shows no

definite point on which the verdict depends, is

not what was intended.

The record reveals nothing of what is called the second reserved question. It is error to submit a fact to the jury and after its finding enter judgment for the defendant on the ground that the evidence was insufficient to establish it : North America Oil Co. v. Forsyth, 12 Wright, 291.

After verdict and before judgment the plaintiffs moved to amend by adding the name of the legal plaintiff, which was refused. The cause had been tried, and the evidence, under the instructions, warranted the verdict. In all actions, in

any stage of the proceedings, the courts have power to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party: Act of 1852, P. L. 574, § 2. It very clearly appeared there was a mistake in omitting the name of the administratrix of William Patton, dec'd, for the statute under which the action was brought directed it should be by and in the name of the personal representative. Legislation and adjudication have favored amendments to the end that causes may be speedily tried on the merits, or when so tried that the result shall be preserved. Thus, the Act of 1872, P. L. 25, provides that no verdict shall be set aside for defectiveness or indefiniteness in its form, or by reason of the want of a declaration or plea, but the court shall have power at any time to direct the filing of a declaration, the entering of a plea, or filing a description if in ejectment, as shall, make the pleading and record conform to what was tried before the jury and found by the verdict. Under the Act of 1852 the courts have power, in any stage of the proceedings, to change or add the names of parties so as to make the record conform to the issue that was tried, and no verdict ought to be set aside where there has been a full trial upon the merits and the formal addition of a party will cure the defect in the record. When the amendment is a formal one, introducing no new or different cause of action, depriving the opposite party of no substantial right, and which ought to have been made in the court below, it will be considered in this court as having been made: Fritz v. Heyl, 12 Norris, 77. This case was tried just as if the legal plaintiff had brought suit and was upon the record, and the amendment ought to have been allowed. When it was moved a year had not elapsed from the date of the decedent's death. It was within the terms of the statute, prejudiced the rights of no one, and if trial was free of error, it would have saved the verdict. Where nothing else in the way of entering judgment upon the verdict we would treat the motion as having been granted, but as the cause goes back to the Common Pleas the amendment will there be made nunc pro tunc.

The important question to the plaintiffs, whether this action can be maintained in Pennsylvania, is not and cannot be raised by them, for decision upon the record as it comes; and we expressly exclude an inference, from the disposition of the assignments of error, that we are of opinion that the action will lie.

Judgment reserved and a venire facias de novo awarded.

CRIMINAL LAW-EXPERT TESTIMONY.

SUPREME COURT OF WISCONSIN.

KNOLL V. STATE OF WISCONSIN.

May 10, 1882.

1. On a trial for murder, where the evidence relied

upon by the prosecution was mainly circumstantial, a person called as an expert testified, against objection, that he had made a comparison of hair taken from the head of the deceased with hair found (together with blood) upon a wheelbarrow belonging to the accused; that such comparison was founded on his experience, he having made a very careful study of hair; and that the hair was precisely the same in length, magnitude, and color, and in every other respect, so that any person could have told it as well as himself; and he added that, as the result of that comparison, he could say that "it was from the head of the same person." Held,that the statement last recited was improperly admitted in evidence, as it appears to have been based merely upon facts open to common observation, and undertook to determine a question which was for the jury.

2. Where a medical witness has testified as from his own knowlego and experience to a matter which is within his province as an expert, (as that bloodstains were caused by human blood corpuscles,) he cannot be impeached by reading to the jury extracts from medical books.

3. In criminal as in civil trials this court reviews the instructions given to the jury only so far as exceptions have been taken thereto.

The defendant, and plaintff in error, was charged and tried for the crime of having wilfully and feloniously killed, with malice aforethought, one Charles Rohde on the fourth of March, 1879. The evidence ruled upon by the state to prove the accused guilty of the crime charged against him was mainly circumstantial. It appeared that the deceased had been in the employ of the defendant for a short time, and the weight of testimony tends to show that he was last seen alive in the early part of the evening of the third of March, at the defendant's saloon. His body was found on the twenty-fifth of the same month in an unfrequented place in a swamp, about 40 rods south of a railway track, and about one-half mile south-west of the defendant's residence. There were four cuts or stabs on his left breast, and two on the front

part of each leg between the knee and thigh. Medical witnesses who made a post-mortem examination of the body, testified that there was a fracture of the skull on the right side of the forehead extending backward and downward to about the margin of the ear; that his bowels had been severely injured from blows; and that death was probably caused by the injury to the head and bowels combined. The theory of the prosecution was that the defendant had killed Rohde on the night of March 4th in his barn, and had then taken the body to the place where it was found for the purpose of concealing the crime.

Among other evidence given to sustain this theory the state produced as a witness one John Timmens, who lived very near the railroad, and who testified that about midnight, March 3rd, he saw from the window of his house a man come along the track with a wheelbarrow and something in it. The witness described the wheelbarrow and the man. There was a wheelbarrow in the possession of the defendant answering this description, and the defendant in size was about such a man as witness saw. There were some blood and hair found upon the wheelbarrow which the defendant had. One Dr. Piper was sworn as a medical expert. He had made a micrscopical examination of blood found on the barrow and on pieces of wood taken from the same; had examined pieces of cloth and hair,—hair taken from the skull of the deceased, and hair found on the wheelbarrow. This witness was permitted to state, against defendant's objection, that he had made a comparison of the hair found on the wheelbarrow and that taken from the skull, such comparison being founded on his experience, ho having made as he said, a very careful study of hair. He was asked to state, and did state under objection, the result of that comparison. He said that the hair was precisely the same in every respect, in length, magnitude, color, and in every other respect, so that any person could have told it as well as himself, and he added: “As the result of the comparison, I can say that it was from the head of the same person."

We have detailed enough of the facts to show the very important bearing of this inculpatory testimony. One exception relied on for a reversal of the judgment is the admission of this testimony against the defendant's objection; and the question presented for decision is, was it competent and proper testimony under the circumstances? The objection to its admission is that the witness was permitted to state or give his opinion upon a vital fact in the case, which it was the province of the jury to determine from the evidence given. The witness said that the hair which he had examined found on the wheelbarrow and that taken from the skull of the deceased was from the head of the same person. The witness reached this conclusion, as we understand his testimony, not from any scientific tests or peculiarities in the structure of the hair which an examination by a microscope would disclose, but from the length, magnitude, and color, or those obvious marks and resemblances which one person of good vision would observe as readily as another. The comparison made required no peculiar skill nor scientific knowledge. It was no more in the province of an expert than of an ordinary person to make it. It related to a matter of common observation. The jury were as competent to make the comparison from the description given of the hair, and draw the conclusion whether it came from the head of the same person, as was the witness. The opinion of the witness as to the fact that the hair came from the head of the same person was not admissible on the ground that the inquiry related to a scientific subject-one which required peculiar knowledge or previous study and experience to give information about. But it related to a matter within the observation, judgment and knowledge of any ordinary man; for the resemblances relied upon in making the comparison, as the length, magnitude and color of the hair, were as open to the ob servation of the jury, or the jury could draw their inference from these resemblances as well as any one. witness, then, could not testify to his opinion on the ground that the subject-matter of the inquiry related to a scientific subject, and was expert testimony.

The

Is there any other principle upon which the testimony would be admissible? At first we had some doubt whether it should not be received on the ground that the witness was merely stating his opinion as to the identity of the hair, and that it was admissible upon the same principle as an opinion in respect to the value of property, or damage done to it, or the identity of a chattel or person, or facts of that nature. In regard to this class of facts a witness can only testify by using language which amounts to little more than giving his opinion about them. But this kind of evidence is admitted in that class of cases from necessity, because it is impossible, by any mere words of description, to give the jury a proper understanding of the facts. But, of course, the general rule is that a witness cannot testify as to his opinion, but is limited to stating facts. Respectable authorities may be found which go nearly, if not quite, the length of sustaining the admission of the testimony which we are considering. See Com. v. Dorsey, 103 Mass. 412; Com. v. Sturdevant, 117 Mass. 122. But it seems to us such evidence is of a most dangerous character, especially when a witness is allowed to testify, as Dr. Piper did, that in his opinion the hair found on the wheelbarrow and that removed from the skull of the desceased was from the head of the same person. The witness had stated without objection that the hair found on the wheelbarrow was human hair. Possibly this might be said to involve a question of special knowledge, learning, or experience. But the witness then described the hair, and said that from comparison of its length, magnitude and color it must, in his opinion, all have come from the same head. That conclusion was the precise fact which the jury were called upon to determine. It is not entirely clear from the record whether the hair taken from the skull and that found on the wheelbarrow were before the court and jury, though we infer such to be the case. If so, it is obvious the jury could make the comparison for themselves, for the resemblance e; marks of similarity were obvious. But, if we are mistaken in this supposition, the hair in both instances had been so fully describedthe points of resemblance or identity had been so fully given-that the jury could draw their own conclusion as to whether it came from the head of the same person or not.

In a number of cases which will be found in our reports the rule had been laid down as to when and upon

what questions a witness may testify to his opinion as a conclusion of fact. Luming ». State, 2 Pin. 284; Burnham v. Mitchell, 34 Wis. 133; Olson v. Talford, 37 Wis. 337; Benedict v. Fond du Lac, 44 Wis 495; Mellor v. Town of Utica, 48 Wis 457; Yauke v. State, 51 Wis. 464; Noonan v. State, post. But none of these cases go to the length of sanctioning the admission of such testimony as that given by Dr. Piper. We think it was clearly incompetent, and must work a reversal of the judgment.

While this result disposes of the case, it may be proper to make a few further remarks on one or two other points which were much discussed by counsel. Dr. Piper also testified as an expert in regard to examinations made by him with a microscope of certain blood-stains found upon pieces of cloth and wood. He gave it as his opinion, founded upon such examination, that some of these stains were caused by human blood corpuscles. For the purpose of discrediting the witness it was proposed on the part of the defence to read opinions stated in certain medical works on this subject. The court would not permit this to be done, holding in effect as Dr. Piper had not referred to any medical work, and did not rely upon the authority of medical writers to support his views, but testified from his own knowledge and experience, it was not proper to read from medical works to contradict him. There can be no doubt of the correctness of this decision, which is sustained by the authorities referred to by Mr. Justice Cassody in Stilling v. Town of Thorp, 11 N. W. REP. 90,

A number of objections are taken to the charge of the court given on the trial. It is perhaps sufficient to say, in answer to all of them, that the accused does not present a single exception to the charge, nor is it pretended that any was ever taken to it. But, notwithstanding this, the learned counsel for the defendant insisted that it was the duty of this court to review the charge, even though it was not excepted to, and if found incorrect in the propositions of law laid down for the guidance of the jury to reverse on that ground. That would be contrary to the uniform practice of this court since its organization. In no case, civil or criminal, has this court reviewed the charge of the trial court where no exception was taken to it. In the absence of all legislation on the subject we do not consider it to be our duty to change a rule of practice so long established in this and other courts. In this case the defendant was assisted by able and intelligent counsel, abundantly competent to protect his rights and secure for him a fair trial. If they did not see anything in the charge of the court which they deemed unfavorable to their client, or objectionable in law, why should this court be called upon to review it? Counsel says that it is a humane principle recognized in criminal law, especially in a case of murder, that the accused stands upon all his rights, waiving nothing which can possibly prejudice him. In the sense in which this principle is sought to be applied it is not strictly correct. For example: an objection to the admission of improper testimony must be taken in time to be available; so must an exception to the charge. There are many things in the conduct of the case which the accused loses the right to object to unless he takes the objection at the proper time. It is needless to mention them, for they will readily occur to every intelligent lawyer. The claim, therefore, that the accused waives nothing, or that he can always insist and take advantage of any error in the proceedings, cannot be maintained. Often a plea of guilty is entered by the accused and acted upon by the court. In that case the party waives his right to a trial. We have said this much in reply to the argument which was so seriously pressed upon us that we could review the charge though no exception was taken to it. But no inference must be made from this that we consider the charge erroneous in any material point. We simply declme to review it.

To guard against any possible misapprehension we deem it proper to say a word on a remark in the charge. The circuit court, among other things, told the jury that their verdict must be simply murder in the first degree, or not guilty, according as they should find the fact. This same charge was given in the case of Dickinson v. State, 48 Wis. 228, and held by this court not to be error. Of course what is there said in the opinion had reference to the facts and circumstances of that particular case. There it was plain, from all the evidence, if the accused was guilty of the commission of any offence whatever it was of the crime of murder in the first degree. The charge was considered

with reference to that state of facts. But whether the charge would have been sustained had there been evidence in the case which would support a conviction of a lesser grade of homicide is a question not decided in the Dickinson Case. This observation, it must be understood, has no reference to the facts or circumstances of the case before us. It would be very improper for us to indicate any impression as to the guilt of the defendant, which we may have derived from an examination of the evidence, and we do not do so. The Dickinson Case was commented on in the argument at the bar, and hence this explanatory remark as to what was intended to be decided in that case.

The judgment of the circuit court is reversed, and the cause remanded for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff of Outagamie county, who will hold him in custody until he shall be discharged or his custody changed by due course of law.—[N. Ŵ. Reporter, Vol. 12, No. 5.

COUNTER-CLAIM ON COUNTER-CLAIM.

A main portion of the science of procedure resolves itself into the problem where to draw the line. A proceeding may seem from many points of view to be reasonable and just, and yet it may not be permissible as a rule of procedure, which must be governed by rules at once the strictest, and framed according to the most general consideration. We are inclined to think that the necessity for drawing the line so as to run in a manner most convenient to the average of cases has not been sufficiently dwelt npon in the decision of Toke v. Andrews, reported in the May number of the Law Journal Reports. The action was for rent due at Midsummer, 1881. The writ was issued on August 26, the statement of claim delivered on November 29, and the statement of defense on December 22. The tenancy subsisted until Michaelmas Day, and the defendant alleged that he was entitled to an outgoing valuation, which he accordingly claimed by way of counter-claim, although it had accrued since the issuing of the writ. On the same day, however, the plaintiff would be entitled to another instalment of rent. He accordingly proceeded to claim this sum by means of a counter-claim to the defendant's counter-claim-a new and hitherto unheard-of proceeding, which, however, has now received the sanction of Mr. Justice Field and Baron Huddleston. If this decision be right, there is no end to the vitality of an action under reasonably favorable circumstances. There is, let us suppose, a twenty-one years' lease subsisting between plaintiff as landlord and defendant as tenant, who is sued for his first quarter's rent. The defendant sets up a counter-claim that the plaintiff covenanted to put a new roof on the house. The plaintiff does not deliver his reply until a second quarter's rent is due, when he counter-claims in respect of that amount. By the time the defendant delivers his rejoinder a fresh grievance of his is ripe, possibly that the plaintiff undertook to paint in the first six months. The action is now ready for trial; but before it is reached another quarter-day passes, and the plaintiff adds a fresh counter-claim. It will go hard if the defendant does not cap the effort, and if, under the rather exasperating circumstances of the

case, the monotony of the proceedings is not relieved by a counter-claim or two for assault and battery, to which possibly the wife of one or other of the parties is made third party. There is, in fact, no reason why the litigation should not go on for one-and-twenty years, and such time afterwards as judges and jurymen can be made to understand the case. This dicture may seem extragavant. It is enough if it is a possible picture, unless some limit be placed on the right to counter claim. The decision in Toke v. Andrews allows an unlimited right to counterclaim in either plaintiff or defendant. With this must be contrasted the decision of the Master of the Rolls in The Original Hartlepool Company v. Gibb, 46 Law J. Rep. Chanc., 311, which drew so strict a limit to counter-claims as to exclude damages suffered by a defendant since the date of the writ. On the general principle we prefer the decision of the Master of the Rolls to the present; that is, so far as the Master of the Rolls held that a limit must exist. We, on a previous occasion, expressed disapproval of the actual limit placed by the learned judge. His mistake, which is now generally admitted, proceeded apparently from a want of experience in cases in which damages were claimed, the Master of the Rolls being under the impression that damages since the date of the writ could not be recovered by a plaintiff, and, therefore, holding that they could not be recovered by a defendant on a counter-claim. Mr Justice Fry, in Beddall v. Maitland, 50 Law J. Rep. Chanc., 401, declined to follow the Master of the Rolls, and held that a cause of action arising since the writ may be the subject of counter-claim. These two cases are far from standing and falling together. It does not follow, because damages since the writ may be recovered on a counter-claim, that a cause of action arising since the writ may be the subject of a counter-claim. The state of facts which arose in Toke v. Andrews, in so far as they throw light on Beddall v. Maitland, tend rather to throw doubt on the principle there laid

The defendant's counter-claim in Toke v. Andrews arose since the date of the writ, and the plaintiff's counter-claim arose at exactly the same date. To allow the defendant to set up this cause of action and to shut the plaintif out of a cause of action arising at the same time, has the appearance of inequality. It may well be said that, in order to prevent a confused pile of counter-claims, the line ought to be drawn at the date of the writ. We do not think this is necessarily so, because the Judicature Acts speak of a counter-claim as a cross-action; and if the plaintiff is so backward in pressing forward his claim as to give time for a counterclaim to issue against him, he has only himself to blame. The proposition at present in question is, whether the plaintiff can be allowed a counter-claim. The foundation of the law of counter-claim is to be found in subsection 3 of section 24 of the Judicature Act, 1873, and in Order XIX, Rule 3. Neither in the act nor in the rule is to be found anything to suggest that