1. The plaintiff’s demand was for an unliquidated sum. He sought to recover damages for the defendant’s refusal to perform his promise. That promise, as alleged, was to pay a certain sum of money and to transfer a certain number of shares. This promise was alleged to have been broken; and, for the breach, the plaintiff claimed damages. These damages were unliquidated, and could not be ascertained by calculation, but would depend upon a consideration of how much the plaintiff was entitled to recover for the breach of the whole agreement of the defendant. No set-off, therefore, could be allowed. Pub. Sts. c. 168, §§ 3, 7.

2. The plaintiff might properly take the objection at the trial, though no demurrer had been filed. Montague v. Boston § Fairhaven Iron Works, 97 Mass. 502. Hubbard v. Mosely, 11 Gray, 170. Exceptions overruled.