Austin v. . Holmes
Supreme Court of North Carolina
This was an action of assumpsit, tried at the Spring Term, 1811, of Davie Superior Court, before his Honor Judge Manly. The declaration was for goods sold and delivered by the plaintiff’s intestate, to the defendant. Among other pleas, the defendant pleaded a set off, due by the intestate to her upon an account, and also for goods sold and delivered.
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This was an action of assumpsit, tried at the Spring Term, 1811, of Davie Superior Court, before his Honor Judge Manly. The declaration was for goods sold and delivered by the plaintiff’s intestate, to the defendant. Among other pleas, the defendant pleaded a set off, due by the intestate to her upon an account, and also for goods sold and delivered. To this plea, the plaintiff replied there were debts of superior dignity, to which his assets were subject; the defendant demurred, and the plain tiff joined in the demurrer. The demurrer was sustained by the presiding judge, who gave judgment…
1Opinion of the CourtDaniel, J.
We are of the opinion, that the judgment sustaining the demurrer was correct. The statute of set off [Rev. St. c. 31, s. 80,) has in it these words, liif either party sue or be sued as executor or administrator, where there are mutual debts subsisting between the testator or intestate and either party, one debt may be set against the other, notwithstanding such debt shall or may bo deemed in law to be of a different nature.” The plaintiff, as administrator, cannot be injured by the set off being allowed, because he is chargeable only for the balance received after the set off is allowed.…
2Cited by2 opinions
- Delamothe v. . LaneSupreme Court of North Carolina · 1816
- Perry v. . PerrySupreme Court of North Carolina · 1817