delivered the opinion of the court, November 12th 1883.

In the case of Good v. Good, 9 Watts 567, Chief Justice Gibson, in speaking of the difference in the practice under the British statute of defalcation and our own, says, that where the defendant, on the trial of the case, follows up his notice of set-off with the requisite'proof to sustain it, as well in the courts of Westminster, as here, he is concluded by the verdict. But that the residue of a set off, not exhausted in extinguishing the opposite demand, not being recoverable, as with us, by the same jury, is by the British practice, reserved for recovery by a future action, or defalcation, whilst- under our statute it must all be disposed of at one operation. He goes on further to say, that the introduction of the set off, being virtually a cross action for an entire demand, it must be prosecuted for the whole amount, if at all. The legal principle here asserted renders the solution of the case in hand easy. Under the British statute, McKay could have used his judgment against the claim of Jennings only in the way of set-off and the balance, after the extinguishment of that claim, would remain, as before, part of the judgment. But in the case thus put, there is no doubt as to the status of the surety in the replevin bond ; he would still be held for this balance. On the other hand, under our statute, the cross demand cannot be used merely as a set off pro tanto, but its assertion is in the nature of a cross action, in which the defendant becomes the actor. And herein is found the mistake of the defendants. They treat the certified balance in McKay’s favor as something wholly foreign to the judgment used as a set off, and as having no connection with it. But they seem to forget the fact that it results directly from the prosecution of that judgment in thé way of a cross suit, and that, as to this balance, the case stands no longer Jennings v. McKay, but McKay v. Jennings, and that no change has been worked upon the replevin judgment save that of diminution. This certificate is, therefore, not less part of the original transaction, than if *493McKay had brought an action of debt or scire facias on his judgment, and Jennings, admitting, for the sake of illustration, liis right so to do, had interposed his demand by way of defalcation. The result would have been exactly what it now is, a judgment in favor of McKay for the balance. Nor is there any force in the argument that the replevin judgment is merged in the certified balance, for this results in the one ease as well as in the other. In either, the original judgment is merged in the subsequent one; in either, the latter measures the liability of Jennings and his surety, and it is the one from which alone the subsequent proeéss must issue. Thus, judgment results from the very same claim, and the difference is found only in the process by which it has been obtained.

We cannot see, therefore, that there was even a technicality in the way of the result reached in” the court below. Neither have the representatives of Painter, the surety, any equitable standing to defend against the balance of the replevin judgment as claimed in this suit, for not only have they been relieved to the amount of the set off, some $19,000, but their rights as against the principal in the bond have not been in any degree abridged. On payment of the judgment, now had against them, they still have-the right, as to Jennings, to have it marked to their use, and they may have process upon it as upon the original judgment.

Such, then, being the case of the defendants, we cannot see how, on either legal or equitable grounds, they can demand a reversal of this judgment.

Judgment affirmed.