than at law against joint debts. Jackson v. Robinson, 3 Mason 138; Murray v. Toland, 3 John. C. R. 569; Dale v. Cooke, 4 John. C. R. 11; Elde v. LoSswell, 2 Bladf. 349; Howe v. Shep ard, 2 Sumn. 409; Robins v. Holley, 1 Monr. 191; Robbins v. McKnight, 5 N. J. Eq. 648; Davis v. Insurance Co., 4 Edw. 307; Birdsell v. Fisher, 17 Minn. 103, 76; Story, Eq. Jur., § 1436.
The opinion of the court was delivered by
CORLISS, C. J. The demurrer of plaintiff to counter-claim of defendant Sullivan having been sustained, he challenges by this appeal the ruling of the trial court in this respect. It is not pretended that the answer does not state a good cause of action in favor of defendant Sullivan and against the plaintiff; but it is insisted by plaintiff that, as the plaintiff's cause of action is a joint debt of defendant Sullivan with his co-defendant King, and as the claim sought to be offset against it is the debt of the plaintiff to the defendant Sullivan alone, it is not the proper subject of counter-claim; that Sullivan must sue upon it in an independent action. The complaint states a cause of action arising out of the execution of an undertaking on appeal by Mead as principal and the two defendants herein," King and Sullivan, as sureties, followed by the affirmance of the judgment appealed from. The claim set forth in the answer is a judgment recovered against the plaintiff, Clark, by Fairbanks, Morse & Co., which was assigned to defendant Sullivan before the commencement of this action. The liability of the two sureties on the undertaking is joint. No words expressing a several liability appearing on the face of the instrument, it was the joint, and not the joint and several, obligation of the parties executing it. Wood v. Fisk, 63 N. Y. 245; 1 Pars. Cont. 11; 1 Story, Cont. § 53; 1 Pom. Eq. Jur. § 409; Pickersgill v. Lahens, 15 Wall. 140. Statutory enactment in this state has left this rule unaltered, where at least one of the parties liable upon the obligation is a mere surety. Comp. Laws, §$ 3425, 3574. The counter-claim, therefore, cannot be sustained under the statute. The statutory counter-claim "must be one existing in favor of a defendant and against a plaintiff between whom a several
