M'Kinney's Administrator v. Roinson

3 N.J.L. 262 | N.J. | 1807

Kirkpatrick, C. J.

— The only reason assigned for the reversal of this judgment, which has any foundation in the record is, that the matter offered by way of off-set by Robinson, the defendant below, was illegal, and ought not to have been admitted. The action was brought for the price of certain articles which the defendant had purchased at the sales of the intestate’s estate. The defendant, before the bringing of the action, had married the widow of the intestate, and now would set-off, against this demand of the administrator, the widow’s distributive share of the personal estate. This, to be sure, would have been altogether unlawful. But in this case, the defendant had given full notice of his intention, and the Justice certifies, that the plaintiff expressly agreed that it should be so done, ^(a) As there is, therefore, no injustice in the proceeding, and what ought to have been determined in two suits is by this [*] means settled in one, I think the old maxim of the law applies, consensus tollit err or cm — Affirm.

Chetwood, for plaintiff. Ros sum, and Pennington, Justices, concurred.

Judgment affirmed.

(a) Vide 1 Halst. 104. — Ed.