Upon the facts stated in the bill of excep-

tions, it is quite clear that this action is not brought by Marsh, nor for his use or benefit, but is brought in the name of Avery for the use and benefit of Hale; and consequently no demand against Marsh can be set off in this action. Gen. Sts. c. 130, §§ 1, 11. Sheldon v. Kendall, 7 Cush. 217. It is therefore unnecessary to consider other objections to the set-off.

Exceptions overruled.