surety to set off his own separate demand against the plaintiff when the latter is insolvent. May he reach out, and, seizing without assignment, interpose his principal's claim as an offset, and yet is he powerless, under the same circumstances, to plead his own demand as a counter claim? Had defendant Sullivan been principal, his claim, upon the favorable consideration of a court of equity, would have been trifling when compared with that high claim to the favor of equity which all the adjudications agree is the peculiar property of a surety. One of the very elements of the law is that he is a favorite of a court of equity; and yet, as a principal debtor, Sullivan could have offset this separate claim against the plaintiff under the statute without showing any equity, because he would have been severally as well as jointly liable to plaintiff on the undertaking under our statute, and therefore a several judgment between him and plaintiff could have been rendered. But as surety, the favorite of the court, with strong equities pleading in his behalf, he may not, it has been decided, in this case, even under an equitable rule, have the same measure of relief and justice. The doctrine on which that decision must rest can have no place in the more advanced system of jurisprudence, which, unlike the old system-before equity achieved its memorable triumph, ere reform in procedure had supplanted technical rules-subordinates in large measure every other consideration to the accomplishment of justice. It is true that it sometimes has been thought that insolvency was not sufficient to create such an equity as would warrant a departure from the statutory rule. See 2 Smith, Lead. Cas. pt. 1, p. 355 and cases. But the doctrine of Lindsay v. Jackson, 2 Paige 581, commends itself with greater force to the reason and conscience of man. Said Chancellor WALWORTH in this leading case: "There is a natural equity that cross demands should be offset against each other, and that the balance only should be recovered. This was the rule of the civil law, and it is now adopted and preserved as the law of those countries where the principles of the civil law prevail. * * * By the common law of England, however, this natural equity was not allowed or enforced in the courts of law, but each party was left to recover his demand in a separate action. As a gen-
