The claim of the defendant, which he seexs to set off against the demand of the plaintiff’s intestate, is for damages sustained by the defendant for want of professional skill and diligence on the part of the intestate in prosecuting certain suits for him. This, being a claim for a sum which is not liquidated and which cannot be ascertained by calculation, is not within the statute of set-off, Rev. Sts. c. 96; and the defendant cannot avail himself of the provisions of that act, to meet the plaintiff’s cause of action.
But the demand sued in this case being that of an administrator of an insolvent estate, the right of set-off is not limited to cases provided for by the statute of set-off. It extends to all cases where mutual demands exist which survive the death of the party; and a defendant, therefore, when sued, may set up in defence claims not liquidated, as well as those *132the amount of which is ascertained. This is the principle established in M’Donald v. Webster, 2 Mass. 498, and which has repeatedly received the sanction of this court. Jarvis v. Rogers, 15 Mass. 407. Knapp v. Lee, 3 Pick. 460. Bigelow v. Folger, 2 Met. 255. And it fully justifies the pleading of the demand by way of set-off, though not allowed by the commissioners of insolvency.
It has been urged, in this case, that the demand put in suit by the plaintiff’s intestate, and for his negligence and want of skill in regard to which the defendant now complains, was not the property of the defendant, but of a person for whom he was administrator, and therefore the defendant cannot avail himself of this defence to defeat the payment of a just demand against himself. But in answer to this objection it may be replied, that the defendant had an interest and legal property in the demand, and was authorized either to sue in his personal capacity, as indorsee, or as administrator of the payee of the note, as he might judge best; and being advised and directed by the plaintiff’s intestate himself, as to the course to be adopted by him, his administrator cannot now take advantage of such advice to screen his intestate from the claim of the defendant for the injury he personally sustained by the want of skill and care on the part of the intestate.
Exceptions overruled.