Pearson v. Nesbit, 12 N.C. 315, 1 Dev. 315 (1827)

Dec. 1827 · Supreme Court of North Carolina

12 N.C. 315, 1 Dev. 315

Elizabeth Pearson v. Alexander Nesbit,

From Rowan.

The pame person cannot be both Plaintiff and Defendant in the same cause. Where two executors confessed a judgment toa copart-nership, of which one of them was a memoer, it was held to be error in fact, and for it the judgment was reversed.

Richmond Pearson appointed the present Plaintiff, and Jesse A Pearjson, executor and executrix of his will. At the time of his death, h* was indebted to Alexander Nes-hil & Company, which consisted of the present Defend-am, and the same Jesse A. Pearson, whom he had appointed one of his executors.

A writ issued in the name of “ A. Nesbit & Co.” Plaintiffs, against Jesse A. Pearson and Elizabeth Pearson, executor arid executrix of Richmond Pearson,” De-feudants, returnable to !he Fail term of 1820, of Rowan S«poeior Court, "hen judgment was confessed thereon by the Defendants. Execution issued on this judgment, and was continued until the Spring term of 1823, when a return of Nulla bona testatoris was made. After the confession <>t the judgment (the case did not state when) Jesse A. Pearson died. A scire facias on the judgment issued at the instance of Nesbif, as surviving partner, to subject the present Plaintiff de bonis propriis.

At the Fall t'rm of 1827, the present Plaintiff, one of the original Defendants, filed an affidavit, stating that Jesse A. Pearson was both Plaintiff and Defendant in the first action ; that sh“ never liad received any of the assets of Richmond Pearson, and moved, 1st, for a writ of error coram nobis ; and if the matter assigned was not error, then 2d!_\, to set aside the judgment confessed by her and Jesse A. Pearson. The defendant pleaded, 1st, In nulla est erratum. 2dly, that if there was error, it was waived by the confession of the judgment.

O i the la .t Cimiif, before bis honor,'"Judge Strange, an order in the alternative was made, whereby the judgment was reversed for error, if error, coram nobis, was proper; but if not, then the judgment was vacated.— Upon which, Nesbit appealed.

Gaston, for the Plaintiff, submitted the case without argument. No Counsel appeared for the Defendant.

Henderson Judge.

A suit at law, is a contest between two parties in a Court of Justise ; the one seeking, and ibeothei withholding the tiling in contest. The, same individual cannot be, at the same time, botli the person seeking and tbe person withholding. For it involves an absurdity, that a person should seek/rom himself, or withhold from himself. Between a corporation and the individuals composing it, this identity does not exist, and the absurdity >bove stated is avoided ; but where, the same person is both Plaintiff and. Defendant, in different rights, as for himself on the one side, and as executor on the other, this absurdity is involved. When adversary rights, as creditor and executor, or debtor and executor, meet in the same individual, the law considers the contest as settled — at least as long as the union' exists. . As soon therefore, as it appears to the Court, that the same individual is both Plaintiff and Defendant, any judgment entered up in the. cause is, to say the least» erroneous, and should be reversed.

I am not prepared to say, whether a writ of error, or a motion to vacate, is the most pioper mode of proceeding in this ease; but I am satisfied, that a writ of error is a proper remedy, although it may not be the only proper one. '

The judgment of the, Superior Court, reversing the original judgment, must be affirmed.

Pi,R Curiam. — Judgment of reversal affirmed.