Page:North Dakota Reports (vol. 2).pdf/129

 statute is constitutional, I refrain from expressing any opinion as to the true meaning and scope of § 4 I fully agree with my Brother BARTHOLOMEW in his opinion that the statute is constitutional.

JAMES O. OLARK, Plaintiff and Respondent, v. C. F. KING and JAMES O. SULLIVAN, Defendants; JAMES O. SULLIVAN, Defendant and Appellant.

Principal and Surety-Offset by Surety.

A surety jointly bound with his principal may, independently of statute, offset against such joint indebtednees his individual claim against the creditor in such joint indebtedness, where both the creditor and the principal are insolvent.

(Opinion Filed July 16, 1891.)

APPEAL from district court, Morton county; Hon. W. H. WINCHESTER, Judge.

Louis Hanitch and B. W. Shaw, for appellant. H. G. Voss, for respondent.

Action by the plaintiff against the defendants upon an undertaking wherein the defendants herein were sureties upon an appeal bond. Defendant Sullivan interposed an equitable setoff. A demurrer to the answer containing the same was sustained by the district court. Defendant appeals. Reversed.

Louis Hanitch and B. W. Shaw for appellant:

The facts alleged in the answer are sufficient to justify the allowance of the set-off upon equitable grounds. Howard v. Shores, 20 Cal. 282; Pomeroy's Rem. § 761; Lindsay v. Jackson, 2 Paige 581; Simpson v. Hart, 14 John. 63; Gillespie v. Torrence, 25 N. Y. 306; Smith v. Felton, 43 N. Y. 419; Seligmann v. Heller Co., 34 N. W. Rep. 232; Becker v. Northway, 46 N. W. Rep. 210.

H. G. Voss for respondent:

The general doctrine in equity as to set-off is the same as at law, and separate debts cannot be set off in equity any more