The opinion of the Court was drawn up by
Whitman C. J.After the evidence had been closed in this case, the counsel for the plaintiff requested the presiding Judge to rule, that the item in the defendant’s set-off, for the rent of the Barrows farm, should be excluded from the consideration of the jury; insisting that it was an item proper only for the consideration of a court of equity, as arising from the use of said farm, alleged by him to have been held in trust by the defendant for the plaintiff’s use. The exception taken was to the refusal of the Judge so to instruct the jury. And no objection appears to have been made that such an item could not legally, under the provisions of the statute, authorizing the filing of cross demands in set-off, be admissible. Any such objection would seem to have been waived at the trial.
In argument now however, it is contended, that such an item could not legally have been filed in set-off. But we are to look with a single eye to the matter of the exceptions; and it seems very clear that the ruling requested, had no reference to any such question. So far as it regards the exceptions, therefore, we must consider this point as not in controversy; and we must inquire simply, whether the Judge did right in refusing the requested instruction or ruling, upon the ground insisted upon at the trial. In the first place, it required the Judge *81to assume a fact, which, if existing, was not established conclusively between the parties; and the existence of which was denied by the defendant, viz., that the Barrows farm was liolden by him in trust for the use of the plaintiff. And, in reference to this matter, it is alleged, that a bill in equity is pending between the parties, in which that question remains in controversy; and which the scope of the requested ruling indicates was not to be settled in this action. The most that could have been requested of the Judge, as to the propriety of allowing the item, no question having been made as to the legal right to file any such item in set-off, was, that the jury should be instructed to consider whether the rent claimed accrued from an estate held in trust by the defendant for the use of the plaintiff; and, if they found that it did, to disallow it, if otherwise to allow it. The exception, therefore, must be overruled.
But the plaintiff requests, that we should suspend the entering up of judgment upon the verdict, till his motion for an injunction, said to be pending under his, bill in equity, for a stay of judgment or execution, shall have been decided. If by the verdict it should be made apparent, that, at law, the defendant has availed himself of an indemnity for all his advances in payment for the Barrows farm, out of the funds of the plaintiff; and that he holds the title to the same in trust for the benefit of the plaintiff, or of his wife, it may be that a decree should be made, requiring the transfer of the legal title to the cestui que use. And if, by a proceeding at law, the defendant has obtained a verdict for a balance, growing out of his legal ownership of the farm, and of the rents and profits thereof, over and above an indemnity for all his advances on account thereof, it may be reasonable, perhaps, that he should be enjoined against proceeding further to enforce his claim under the verdict. The entering up of judgment, therefore, may be suspended until the motion for the injunction shall have been decided.