We do not suppose the appellee could have resorted to the summary remedy, given by the statute (R. C. § 3071), against a principal, in favor of a surety who has paid, in whole or in part, a judgment rendered against him, for the debt of the principal. That is not, however, material; for a statutory remedy of this kind is merely cumulative, not excluding the common-law remedy, and the plaintiff has the right to elect which he will pursue. — Sawyer v. Ballew, 4 Port. 116.
2. When the cause of action accrued to the appellee, on which the suit against Butler was founded, the statute of limitations had not perfected a bar to the debt pleaded as a set-off, on which the appellee was liable as the surety of the appellant. The statute expressly preserves the validity of the debt as a set-off, though time had operated a bar to its recovery when pleaded.' — R. C. § 2647. Besides, the plea of *485set-off related to the commencement of the suit, and the statute of limitations had not then operated a bar. The set-off was consequently good, although barred at the time the plea was filed.- — Waterman on Set-off, § 94, p. 109.
3. We cannot perceive that the statute (B. C. §3073), prohibiting a surety from confessing judgment, or submitting to a judgment by default, when sued alone, if the principal is willing to indemnify him, and to defend the suit, has any application to the facts of this case. We lay no stress on the fact, that th.ere was not a suit against the surety by the creditor, but that the debt, on which the surety was liable, was pleaded as a set-off by the creditor to a demand the surety was prosecuting againsthim. Such a case may not be within the precise words, and yet come within the spirit of the statute. The manifest purpose of the statute was, to confer on the surety the right, by notice to the principal, of requiring him to intervene, and, after indemnifying the surety as the court should direct, to take upon himself the burden of the suit. If he failed to intervene, after such notice, the judgment against the surety would, in the absence of fraud, become conclusive against him, cutting off all defenses to the original debt. It was intended, also, to preclude the surety from submitting to a judgment, from the payment of which a new debt in his favor against the principal would arise, if the principal was willing to defend against such judgment, at his own cost. But, it was never intended, that the failure of the surety to give notice to the principal, of the pending suit, should bar a recovery from the principal of the amount the surety may have paid in extinguishment of the just debt which the principal was primarily liable to pay. Nor was it intended to compel the surety into useless and expensive litigation — to the defense of a suit, when no ground of defense existed. Nor was it intended to prevent him from confessing judgment, or submitting to judgment by default, taking upon himself, when suing the principal for indemnity, the burden of establishing the validity of the original debt, and repelling, as the creditor, if suing the principal, would have been bound to repel, all defenses against it.
A notice to the appellant, to intervene in the suit, in which the set-off of this debt against his surety, the appellee, was allowed, would, so far as the facts show, have been an invitation to enter into vexatious litigation. The only defense which could have been made was usury; and that the surety insisted on, reducing the amount allowed as a set-off, to the principal alone. What just cause of complaint can' the appellant have, that he was not notified to appear and defend the suit; or that the appellee, having, by agreement with *486tbe creditor, reduced tlie set-off to the amount legally recoverable, submitted to the judgment the law required to be rendered, without the farce of a tria], as if there was a real and honest controversy? The appellee invaded no right of the appellant, and deprived him of no defense to the original debt. Tbe statute cannot be construed, as be would have it construed, that tbe confession of judgment by a surety bars bis right of recovery from tbe principal, tbougb tbe debt was just, and there was not a shadow of defense against it. If tbe appellee bad voluntarily paid in money tbe debt to Butler, at tbe time of commencing suit against Mm; or, if be bad then accepted tbe debt from Butler, in satisfaction of the debt due from him, there could not have been the pretense of defense against bis demand for reimbursement; and there is no more force in the defense now urged.
4. In Huddleston v. Askey, at present term, we re-affirmed decisions of this court, commencing in Minor’s Reports, and continuing to the present day, whenever the question has been presented, that when two are jointly sued, tbe debt of tbe plaintiff to one of tbe defendants is a good set-off.
There is no error in the record, and the judgment is affirmed.