151 Mass. 204 | Mass. | 1890
The question principally argued is whether there was any evidence to sustain the defendant’s declaration in set' off. The defendant put in an instrument purporting to be signed
It is objected that the claim against the plaintiff is not matter of set-off. The judge seems to have found that the plaintiff received the money to the use of the defendant’s intestate, or, in other words, that she made herself a debtor for the amount. Certainly it may be doubted whether the instrument means anything more than that, and if not, as the debt was payable at any time on demand, it was a proper matter of set off. If, on the other hand, the instrument imports a trust properly so called, rather than a debt, so that the plaintiff was bound to keep the fund identified, but was only responsible for reasonable care in its preservation, and was not personally answerable for an equivalent sum from her assets generally and at all events, still we think that the defendant’s demand could-be set off, under the Pub. Sts. c. 168, §§ 1,14, consistently with §§ 2, 3.
Exceptions overruled.