eral rule, the court of chancery followed the rule of law; and, after the statute had permitted set-offs to a certain extent in suits at law, this court also adopted and acted on that principle. But the courts of chancery, even before the statute, recognized the principle of natural equity, and acted upon it, in cases where the law could not give a remedy in a separate suit in consequence of the insolvency of one of the parties." To same effect are Smith v. Felton, 43 N. Y. 419; Seligmann v. Clothing Co., 69 Wis. 410, 34 N. W. Rep. 232; Becker v. Northway, 44 Minn. 61, 46 N. W. Rep. 210; Coffin v. McLean, 80 N. Y. 560; Davidson v. Alfaro, Id 660; Hiner v. Newton, 30 Wis. 640-644; Hobbs v. Duff, 23 Cal. 597-629.
We are not called upon to decide on this appeal whether it was proper for the defendant to urge his equity by answer, or whether he should not have filed his complaint in equity to enforce his equitable set-off. Nor are we asked to determine whether he should have waited until the recovery of judgment against him in this action, and then by motion or by action had one judgment set off against the othor. Only the question of right has been discussed on this appeal. What is the proper procedure has not been touched. It might be well in passing, however, to refer to the fact that in New York, where the provisions of the Code relating to this question are the same as in this state, the practice, as apparently sanctioned by the courts, has been to insist upon this equity by answer. Coffin v. McLean, 80 N. Y. 560; Smith v. Felton, 43 N. Y. 419. This is true of Minnesota also, but the statute there was somewhat different. Becker v. Northway, 44 Minn. 61, 46 N. W. Rep. 210. See, also, Dempsey'v. Rhodes, 93 N. C. 120. But see Duff v. Hobbs, 19 Cal. 646.
It was contended on the oral argument that equity would not decree the offsetting of defendant's judgment against plaintiff's claim because the plaintiff's claim was exempt; that, in effect, this would be the seizure of his exempt property to pay a judg- ment against him. The point is not without force, but it is not involved on this appeal, as there is nothing to show that plain- tiff has not a large amount of property in xcess of his ex- emptions. An insolvent may own a large estate. No cases
