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[2] The question of the constitutionality of St. 1912, c. 317, pursuant to which the case was reported, has not been argued by the defendant though raised by it in the superior court. It plainly is constitutional. It relates to a matter of procedure or remedy, and does not affect vested rights. Robbins v. Holman, 11 Cush. 26; George v. Reed, 101 Mass. 378. In accordance with the report the entry will be judgment on the verdict. So ordered.

the avenue, having gone along it for a year | the plaintiff's mother, under whose charge on his way to school, and knew that there he was. were double tracks "with cars going frequently at all times of the day." It is not contended that he was not of sufficient age, intelligence and experience to be upon the street unattended. The contrary is insisted upon by the defendant and is claimed by the plaintiff. No question of due care on the part of the plaintiff's parents is therefore involved. See Slattery v. Lawrence Ice Co., 190 Mass. 79, 76 N. E. 459. He was lawfully upon the street, but it is apparent, as he himself said in substance, that he was not paying attention to anything except the game that he was playing. He did not look to see if a car was coming, and though he says that he listened it is manifest that his attention was absorbed by his play. He ran into the street when the car was so near that it struck him with hardly an appreciable interval of time as soon as he reached the A party to a bill to establish an equitable track, and he says that he did not see it or who does not demur to the bill for multifariousset-off and set aside a fraudulent conveyance, hear it. Nothing but utter inattention pre-ness, cannot object to the misjoinder of causes vented him from doing so. A certain amount of heedlessness is to be expected in a child of his age and is consistent with due care on

PERRY v. PYE et al.

(215 Mass. 403)

(Supreme Judicial Court of Massachusetts. Suffolk. June 18, 1913.)

1. EQUITY (§ 330*)-PLEADING-WAIVER OF DEFECTS-MULTIFARIOUSNESS.

and prayers for relief which concern the rights of other parties but do not affect him.

[Ed. Note.-For other cases, see Equity, Cent.

Dig. §§ 660-668, 671; Dec. Dig. § 330.*]
2. APPEAL AND ERROR (§ 974*)-EQUITY (§
377*) REVIEW - DISCRETION OF LOWER
COURT-SUBMISSION OF ISSUES TO JURY.

Where the assignee of a claim, upon which action had been brought by the creditor against the debtor, appeared as counsel and witness for been referred a suit by the debtor against the the creditor before the master, to whom had creditor to establish an equitable set-off, a motion by the assignee, after having been made a claim under the assignment framed for a jury party to the bill, to have the issues as to his is addressed to the discretion of the justice, and the denial thereof will be affirmed on appeal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3858, 3859: Dec. Dig. § 974;* Equity, Cent. Dig. §§ 788-793; Dec. Dig. § 377.*]

3. APPEAL AND ERROR (§ 1019*)-REVIEWFINDINGS OF MASTER-CONFLICTING EVIDENCE.

its part. But the trouble with the plaintiff's case is that the only reasonable construction that can be given to his and the other testimony is that he was not exercising any care whatever. The shout of Joseph to "hurry up" was an incident of the play and did not excuse the failure of the plaintiff to exercise due care. The case is a hard one for the plaintiff. He lost both hands. But unless we are prepared to hold that in every case where a child of tender years is injured by the negligence of another he is entitled to recover, we must sustain the ruling. In the case of Aiken v. Holyoke St. Ry., 180 Mass. 8, 61 N. E. 557, which amongst those cited by the plaintiff most resembles this, there was evidence tending to show that the plaintiff had ceased his play and was using the highway as a traveler returning home. See Messenger v. Dennie, 137 Mass. 197, 50 Am. Rep. 295; Hayes v. Norcross, 162 Mass. 546, 39 N. E. 282; Morey v. Gloucester St. Ry., 171 Mass. 164, 50 N. E. 530; Gleason v. Smith, 180 Mass. 6, 61 N. E. 220, 55 L. R. A. 622, 91 Am. St. Rep. 261; Young v. Small. 188 Mass. 4, 73 N. E. 1019, 108 Am. St. Rep. 457; Murphy v. Boston Elev. Ry., 188 Mass 8, 73 N. E. 1018; Stackpole v. Boston Elev. Ry., 193 Mass. 562, 79 N. E. 740; Holian v. Boston Elev. Ry., 194 Mass. 74, 80 N. E. 1, 11 L. R. A. (N. S.) 166; Russo v. Charles S. Brown Co., 198 Mass. 473, 84 N. E. 840; Notes, Cent. Dig. §§ 1377-1380, 1383-1392, [Ed. Note.-For other cases, see Bills and Kyle v. Boston Elev., 102 N. E. 310; Waluke-1394-1423; Dec. Dig. § 443.*] wich v. Boston & Northern St. Ry., 102 N. E. 311. We have assumed in the plaintiff's favor that there was evidence of negligence on the part of the motorman. It is plain also, if that question were material, that there was evidence of due care on the part of

Where the record fails to show plainly that the findings of the master, based upon irreconwhich depend on a reversal of the master's concilable testimony, are erroneous, exceptions clusions will be overruled.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4008-4010; Dec. Dig. § 1019.*]

4. BILLS AND NOTES (§ 443*)-TITLE TO SUSTAIN ACTION-INDORSEE.

promissory note by indorsement is entitled to One who has acquired the legal title to a sue thereon in his own name, although as between himself and the indorser he is bound to account in part for the proceeds.

5. APPEAL AND ERROR (§ 1018*)-FINDINGS OF MASTER-CONCLUSIVENESS.

A finding by the master that an agent had authority to complete and deliver a note which has been left in an uncompleted form is conclusive, even though the payee knew that the one delivering the note to him was an agent, and

more than one inference could be drawn from the evidence as to his authority.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 4006, 4007; Dec. Dig. 1018.*]

6. BILLS AND NOTES (§ 2*)-WHAT LAW GOV

GovERNS-NOTE COMPLETED AND DELIVERED BY AGENT.

An uncompleted, negotiable instrument sent by a maker residing in Massachusetts to an agent in Canada to be filled out and delivered to the payee there is subject to the Canadian laws governing the completion of negotiable instruments.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 30; Dec. Dig. § 2.*] 7. BILLS AND NOTES (§ 60*)—NOTE COMPLETED BY AGENT OF MAKER-EFFECT OF ERROR. Under Canada Bills of Exchange Act, § 20, providing that one in possession of an uncompleted bill has prima facie authority to complete it, and that it will thereafter be enforceable against any one who was a party thereto prior to its completion, if completed within a reasonable time and strictly within the authority given, a note so completed by an agent is binding, even though the agent, acting in good faith, filled in the amount for slightly less than the amount actually due.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 85-94; Dec. Dig. § 60.*] 8. EVIDENCE (§ 271*)-SELF-SERVING DECLA RATIONS-STATEMENT BY ASSIGNOR.

Where the defendants contend that a note on which the plaintiff relies as a transferee thereof was a "recent contrivance" to avoid the statute of limitations, a letter to the original payee from his son, which referred to the notę, is competent on that issue, even though it amounts to self-serving declarations.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]

9. BILLS AND NOTES (§ 139*) - FAILURE OF CONSIDERATION-RENEWAL NOTE.

Where an agent of the maker of a note, after delivering the note to the payee and receiving from him the old note which it was given to renew, later returned the original note to the payee, who instituted suit thereon, which he later voluntarily discontinued before bringing suit on the renewal note, the suit did not constitute a payment or satisfaction which would cause a failure of the consideration for the renewal note.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. 88 340, 354; Dec. Dig. 139.*]

10. FRAUDULENT CONVEYANCES (§ 312*)-SETTING ASIDE-DECREE-EXTENT OF RELIEF.

In a suit to have the proceeds of a judgment, which the defendant had obtained in another action and which he had assigned for the benefit of certain creditors, subjected to the payment of the claim of another creditor, where the assignment was found to be valid, the rights of the various creditors secured thereby to participate therein cannot be determined, although they were all defendants.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 963-965, 967; Dec. Dig. § 312.*]

11. APPEAL AND ERROR (§ 1048*)-HARMLESS ERROR-EXCLUSION OF TESTIMONY.

Where the assignee of a certain claim had testified fully as to his waiver of or reliance upon his assignment, he was not prejudiced by the exclusion of questions put to him upon redirect examination, relating to the security upon which he relied for the repayment of advances,

and whether he knowingly intended to surrender the assignment or waive his rights under it, since the legal effect of his acts was for the determination of the master and not for the judgment of the witness.

Error, Cent. Dig. §§ 4140-4145, 4151, 4158[Ed. Note.-For other cases, see Appeal and 4160; Dec. Dig. § 1048.*]

12. APPEAL AND ERROR (§ 1071*)-HARMLESS ERROR-RULINGS BY MASTER-FORMAL ER

ROR.

An exception to the master's ruling upon a question which he should have referred to the court will not be sustained where his ruling was correct.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4234-4239; Dec. Dig. § 1071.*]

13. APPEAL AND ERROR (§ 843*)-REVIEWMATTERS NOT NECESSARY TO DECISIONREMEDY AT LAW.

Where the defendant to a bill to establish an equitable set-off and for other equitable relief did not plead that the plaintiff had an adequate remedy at law as to the set-off, he cannot urge that objection to the court's jurisdiction after the master's report, and it is unnecessary to decide whether the set-off could have been pleaded under Rev. Laws, c. 174, chapter 170, § 2, or chapter 177, § 27, providing for a set-off in certain cases, since if the court had jurisdiction for one purpose it could exercise that jurisdiction for any purpose within the scope of the bill.

Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 843.*]

14. SET-OFF AND COUNTERCLAIM (§ 8*)—NATURE OF SET-OFF.

The power to compel a set-off was never recognized at common law but has always been exercised by equity whenever necessary for the proper administration of justice.

[Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 9-11; Dec. Dig. §

8.*]

15. JUDGMENT (§ 439*)-SET-OFF OF JUDGMENTS-GROUNDS OF REMEDY-EQUITABLE SET-OFF.

Since there is no express provision for the set-off of a decree for injunctive relief and money damages against a judgment at law, equity will decree a set-off of such a decree against a judgment obtained by an insolvent nonresident, where the record shows that it is the only means by which satisfaction may be secured.

Cent. Dig. §§ 830-835; Dec. Dig. § 439.*] [Ed. Note.-For other cases, see Judgment, 16. JUDGMENT (§ 439*)-SET-OFF-GROUNDSEQUITABLE SET-OFF.

In such a case it is proper to consider the nonresidence and insolvency of the judgment creditor.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 830-835; Dec. Dig. § 439.*] 17. GARNISHMENT (§ 130*)-PROCEEDINGS TO ENFORCE-SET-OFF BY GARNISHEE.

Under Rev. Laws, c. 189, § 25, providing that a trustee might deduct from the goods in his hands all demands against the defendant of which he could have availed himself by way of set-off, the right of one, against whom an action for a money judgment has been brought, to have a note given by the judgment creditor and held by the judgment debtor decreed to be an equitable set-off against any judgment which may be obtained is not defeated by the fact that another creditor of the judgment creditor has brought trustee process to have the amount of the judgment applied to her claim, where the parties are all before the court of equity, and

the decree, establishing the equitable set-off can preserve the rights of the creditor under the

trustee process.

[Ed. Note. For other cases, see Garnishment, Cent. Dig. §§ 255-259; Dec. Dig. § 130.*] Report from Supreme Judicial Court, Suffolk County.

Bill by Alonzo W. Perry against Charles E. Pye and others to have a note given by Pye and held by Perry established as an equitable set-off to any judgment which the defendant Pye might obtain in an action brought by him against the plaintiff, and also to have an assignment by Pye of his claim against the defendant Canada, Atlantic & Plant Steamship Company to the defendant James E. Young set aside as a fraud upon creditors. On report from the single justice to the full court upon the report of the master. Decree directed establishing the set-off and affirming the validity of the assignment.

In 1903 the defendants, Pye and Daggett, interested the plaintiff, Perry, in the purchase of the Canada, Atlantic & Plant Steamship Company. To secure the sum of money needed for his interest, the defendant, Pye, borrowed $7,000 upon his promissory note from one Farquhar residing at Halifax, N. S., and this note was renewed several times prior to 1904, in which year the defendant, Pye, sent to his agent in Halifax a blank note signed by him, with instructions to fill in the date and amount and deliver it to Farquhar in satisfaction of the note held by him. The agent secured an agreement by Farquhar, with Pye's consent, as he testified but which Pye denied, to hold that note until litigation in which Pye was then engaged was settled, in order that the interest might not be compounded. The defendant, Pye, had claims against the plaintiff, Perry, and the steamship company arising out of the purchase of the steamship line, and assigned the former claim to the defendant, Daggett, and the latter claim to the defendant Young. Young brought an action upon his claim against the company and recovered judgment, but no action was brought by Daggett, and the assignment to him was mislaid and considered by all parties to have been lost. Thereafter Pye brought an action against Perry upon the claim, and secured a verdict of the jury in his favor, and when the present suit was brought that action was pending, upon exceptions by Perry, in the Supreme Judicial Court, Farquhar, in 1910, secured from Pye's agent in Halifax the note delivered to him in 1904, and surrendered to the agent the original note which that was given to renew. Thereafter Farquhar indorsed the renewal note, after maturity, to Perry who had full knowledge of the circumstances under which it was received. Perry induced Farquhar to obtain from Pye's agent the note which had been surrendered, and brought a suit against Pye upon that

note, which however he subsequently dismissed before hearing, and now brings his bill to have the renewal note indorsed to him

by Farquhar established as a set-off against any judgment which Pye might obtain, and also to have the assignment to Young of Pye's claim against the steamship company had been filed disclosing the assignment to set aside as fraudulent. After Pye's answer Daggett, the latter was made a party defendant, as was also Pye's former wife, Mrs. fendant, as was also Pye's former wife, Mrs. Hall, who had instituted a trustee process against Pye and Perry for the amount of a judgment which she held against Pye for ali

mony.

Hannigan & Fox, of Boston, for plaintiff. Anson M. Lyman, of Boston, for defendants Pye and Daggett. Wm. Reed Bigelow and Jas. E. Young, both of Boston, for defendant Young.

BRALEY, J. [1, 2] The original bill and the bill as amended is framed with a double aspect. If the plaintiff's debt is established he asks in the second paragraph that an equitable set-off be made of any judgment which the defendant Pye may recover against him in a pending action at law; while in the third, fourth and fifth paragraphs he seeks to reach and apply in payment the amount of a judgment recovered by this defendant against the steamship company. The defendant Daggett did not become a party until the master to whom the case was referred had prepared his draft report, and the plaintiff thereupon had amended the bill by joining as defendants all parties interested in an assignment of the claim against the company, given by Pye to the defendant Young. It is true as to the defendant Daggett that by the allegations he is connected only with the claim set forth in the third paragraph. But his demurrer is not on the ground that the bill is multifarious. If he did not care to raise this question he cannot avail himself of possible objections to the misjoinder of causes and the prayers for relief which do not concern him, but affect only the defendant Pye, who has answered generally. Davis v. Peabody, 170 Mass. 397, 49 N. E. 750. The demurrer was rightly overruled. The master's report having come in, it was disclosed that this defendant held an assignment from Pye of the claim against the plaintiff described in the second paragraph, and that he also was interested and protected as a creditor of Pye under the assignment to the defendant Young. It further appears that before he became a party he had appeared before the master, both as counsel and as an important witness in support of his alleged rights, where the case was fully tried upon the merits, and that he has no interest in the litigation except as an assignee. The order under these circumstances denying his mo

tion to have issues framed for a jury having | of fact." The inferences to be drawn from been within the discretion of the single jus- the evidence were questions of fact, and the tice, it should be affirmed, even if it is reviewable on appeal. Jones v. Keen, 115 Mass. 176, 180; Ginn v. Almy, 212 Mass. 486, 494, 99 N. E. 276.

[3] We pass to the exceptions to the master's report. It contains copious recitals of the evidence, with a full statement of the respective claims of the parties, which are shown to have been exhaustively contested. A careful perusal, however, is insufficient to show plainly that the master's findings of fact, based upon irreconcilable testimony, are erroneous, and all of the exceptions which depend upon a reversal of his conclusions must be overruled. Ginn v. Almy, 212 Mass. 486, 99 N. E. 276. The exceptions to the master's rulings and the nature of the decrees to be entered upon the report, are left for decision.

findings that under all the circumstances the defendant's agent had acted within a reasonable time, in good faith, and had not exceeded his authority, even if the face of the note was slightly less than the amount actually due, left the note as a valid, undischarged obligation of the defendant. See Ives v. Farmers' Bank, 2 Allen, 236; Boston Steel & Iron Co. v. Steuer, 183 Mass. 140, 146, 66 N. E. 646, 97 Am. St. Rep. 426; Lloyd's Bank, Limited, v. Cook, 1 K. B. (1907) 794.

[8-10] In this connection the admission in evidence of the carbon copy of a letter to the payee from his son, to whom, while abroad, he apparently had entrusted the procurement of the note is to be noticed. The letter stated that the son had received the note from Boak, filled in as the payee desired. The original had been lost or destroyed and could not be produced. Of itself the copy would have been in the nature of self-serving declarations and inadmissible. But the defendants insisted that the note in suit was a "recent contrivance" to avoid the statute of limitations, because the letters of Boak to the defendant Young substantially stated that the debt had become outlawed before the note was delivered. To meet this specific defense, to which it is strictly limited by the master, the evidence was competent. It is difficult to see upon what ground the further defense of failure of consideration rests. No contention is made that any part of the original loan had been repaid to Farquhar, and the subsequent bill in equity, to collect the note having been discontinued without prejudice, could not operate either as payment or satisfaction. The master upon his findings correctly ruled that there had been no failure of consideration. The assignment to Young having been found valid, the proceeds of the judgment against the steamship company would be exhausted upon distribution among the creditors for whose benefit it had been given, and the bill fails in so far as it seeks to reach and apply any part of this fund in payment of the plaintiff's debt. Hoshor-Platt v. Miller, 190 Mass. 285, 287, 76 N. E. 650. It also results that the claims of the creditors who have been made parties defendant, including the defendant Hall, whose right to participate was heard and allowed by a single justice, and the proportionate part which each should receive, cannot be determined in this suit. Union Trust Co. v. Reed, 213 Mass. 199, 202, 99 N. E. 1093.

[4-7] The plaintiff acquired the promissory note in suit by the endorsement of one Farquhar, the payee, and, having been vested with the legal title, he can sue in our courts in his own name, although as between himself and the endorser he may be bound to account partially for the proceeds. . L. c. 73, § 16; Jump v. Leon, 192 Mass. 511, 513, 514, 78 N. E. 532, 116 Am. St. Rep. 265. But the note having been endorsed after maturity, it is contended that the defendant Pye, who is the maker, never became bound, as the delivery of the instrument to the payee was unauthorized. The master's finding that one Boak, with whom this defendant had left the note signed in blank, had been clothed with authority to fill in the amount with the date, and to deliver the completed instrument to the payee in renewal of a former note is conclusive, even if, as the defendant urges, the payee knew that Boak was an agent, and more than one inference could have been drawn from the evidence. The transaction took place in Canada and is governed by the foreign law, put in evidence. Glidden v. Chamberlin, 167 Mass. 486, 46 N. E. 103, 57 Am. St. Rep. 479; American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N.. E. 526. The "Canada Bills of Exchange Acts," § 20, provides that "where a simple signature on a blank paper is delivered by the signor in order that it may be converted into a bill, it operates as a prima facie authority to fill it up as a complete bill for any amount, using the signature for that of the drawer or endorser, and in like manner when a bill is wanting in any material particular the person in possession of it has a prima facie authority to fill up the omission in any way Nothing is now left but the controversy he thinks fit. In order that such an instru- over the right to set off the plaintiff's debt, ment, when completed, may be enforceable under paragraph two, which has been estabagainst any person who became a party lished by the master. It is stated in the rethereto prior to its completion, it must be port that in accordance with the fourth filled within a reasonable time and strictly prayer of the bill an injunction issued which in accordance with the authority given; rea- is still in force, enjoining the defendant dur

bering his claim, and, while a large verdict | standing the assignment, assignment, the executions has been obtained, the case is pending on could have been set off, under R. L. c. 177, exceptions taken by the present plaintiff. It was undisputed that the defendant Daggett's assignment antedated the plaintiff's title to the note; but it was but it was a question of fact whether the assignment had been waived or canceled by the mutual consent of the parties. Metropolitan Coal Co. v. Boutell Trans. & Towing Co., 185 Mass. 391, 397, 70 N. E. 421.

§ 27. See Porter v. Leach, 13 Metc. 482; Fiske v. Steele, 152 Mass. 260, 25 N. E. 291; Aldrich v. Blatchford, 175 Mass. 369, 56 N. E. 700; Franks v. Edinberg, 185 Mass. 49, 69 N. E. 1058. The doctrine of set-off, while not recognized at common law, had its origin in equity, where the power to compel a setoff of cross demands or of judgments has been exercised whenever necessary for the [11-17] It appears that after the master proper administration of justice. Stone v. had prepared his draft report, at the request Old Colony St. Ry., 212 Mass. 459, 466, 99 of counsel for Mr. Daggett he reopened the N. E. 218; Holbrook v. Bliss, 9 Allen, 69, 77; case for the taking of further evidence upon Abbott v. Foote, 146 Mass. 336, 15 N. E. 773, this question, but neither Daggett nor Pye 4 Am. St. Rep. 314; Crummett v. Littlefield, have been harmed by the exclusion of cer- 98 Me. 317, 56 Atl. 1053; Earl of Oxford's tain questions in the re-direct examination Case, supra. If as a general rule where of Daggett relating to the security upon statutes of set-off have been enacted, equity which he relied for repayment of advance- will follow the construction adopted by ments made and professional services ren- courts of law, no express provision for a setdered to Pye, and whether he knowingly in- off of a decree for injunctive relief and for tended to surrender the assignment or to money damages in equity against a judgment waive any rights under it. The entire mat- at law is found in our statutes. Jump v. ter, as the witness himself said, had been Leon, 192 Mass. 511, 516, 78 N. E. 532, 116 exhaustively covered by his previous testi- Am. St. Rep. 265; Chipman v. Fowle, 130 mony, which he did not desire to change, and Mass. 352; Spaulding v. Backus, 122 Mass. the legal effect of what he voluntarily had 553, 554, 23 Am. Rep. 391; Black v. Whitall, done was for the determination of the mas- 9 N. J. Eq. 572, 59 Am. Dec. 423; Bell v. ter and not for the judgment of the witness. Ward, 10 R. I. 503, 506. And in Holden v. The defendant Pye contends that although Gilbert, 7 Paige (N. Y.) 208, 212, on a bill in the master found the assignment had been equity to foreclose, a judgment at law in canceled he was without authority to pass favor of the defendant was held to be the upon the question of set-off. It might have subject of a set-off against a decree in favor been reserved for the court, but if the ruling of the plaintiff for the sale of mortgaged allowing the set-off is right, an exception premises to satisfy the debt and costs due will not be sustained. The defense that the to the latter. The nonresidence of the plainremedy at law is adequate has never been tiff Pye and his insolvency are material pleaded by him to any aspect of the bill, facts and properly may be considered. Lindyet he urges that upon the master's report say v. Jackson, 2 Paige (N. Y.) 581; Tone v. no case is made out for equitable relief, and Brace, 8 Paige (N. Y.) 597; Hendrickson v. that the court has no jurisdiction to decree Hinckley, 17 How. 443, 446, 447, 15 L. Ed. a set-off. The objection to the jurisdiction 123. A set-off will not operate unjustly upon comes too late. The well-established rule is any party to the case. It is within the spirthat if the court has jurisdiction for one it, if not the letter, of our statutes relating purpose, it will where justice requires, exer- to set-off. The defendant is not shown to be cise it for any purpose within the scope of possessed of, or entitled to, any interest in the bill. Dearth v. Hide & Leather Bank, real or personal property which can be seiz100 Mass. 540, 543; American Stay Co. v. ed on execution at law or reached in equity Delaney, 211 Mass. 229, 233, 97 N. E. 911, and upon the record it is the only way in Ann. Cas. 1913B, 509; Earl of Oxford's which the plaintiff can obtain any pecuniary Case, 2 White & Tudor's Lead. Cas. in Eq. satisfaction. Under such conditions relief may (4th Am. Ed.) 1241, 1347, 1348, 1349; Strat- be decreed. Spaulding v. Backus, 122 Mass. ton v. Hernon, 154 Mass. 310, 28 N. E. 269. 553, 23 Am. Rep. 391; North Chicago Rolling It is apparent from the report that the plain- Mill Co. v. St. Louis Ore & Steel Co., 152 tiff succeeded to the rights of the payee at U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565. the date of the transfer, and by cancellation Nor is the exercise of this right defeated by of the assignment, no intervening equities the facts found by the single justice, to are shown to prevent an off-set as in Ames v. whom the claim of the defendant Hall was Bates, 119 Mass. 397, 399. It is unnecessary submitted. By the affirmative averments in to decide whether the note could have been her answer she submits herself to the jurispleaded under the R. L. c. 174, providing for diction of the court and asks that indepenthe set-off of mutual demands due at the dently of her interest as a creditor of Pye date of the writ, or whether as the defend- under the assignment to Young her rights ant was a nonresident there was a remedy may be established and protected in the suit by a cross-action and a set-off of judgments by trustee process she had brought against under R. L. c. 170, § 2, or whether, notwith- Pye and the plaintiff in the superior court,

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