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.)