Pearson v. Nesbit
| Decision Date | 31 December 1827 |
| Citation | 12 N.C. 315 |
| Court | North Carolina Supreme Court |
| Parties | ELIZABETH PEARSON v. ALEXANDER NESBIT. |
The same person cannot be both plaintiff and defendant in the same cause. Where two executors confessed a judgment to a copartnership, of which one of them was a member, it was held to be error in fact, and for it the judgment was reversed.
RICHMOND PEARSON appointed the present plaintiff and Jesse A. Pearson executor and executrix of his will. At the time of his death he was indebted to Alexander Nesbit & Co., which consisted of the present defendant and the same Jesse A. Pearson, whom he had appointed one of his executors.
A writ "issued in the name of "A. Nesbit & Co.,"plaintiff, against "Jesse A. Pearson and Elizabeth Pearson, executor and executrix of Richmond Pearson," defendants, returnable to Fall Term, 1820, of Rowan Superior Court, when judgment was confessed thereon by the defendants. Execution issued on this judgment, and was continued until Spring Term, 1823, when a return of nulla bona testatoris was made. After the confession of the judgment (the case did not state when) Jesse A. Pearson died. A scire facias on the judgment issued at the instance of Nesbit, as surviving partner, to subject the present plaintiff de bonis propriis.
At Fall Term, 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 she never had received any of the assets of Richmond Pearson, and moved (1) for a writ of error coram nobis; and if the matter assigned was not error, then (2) to set aside the judgment confessed by her and Jesse A. Pearson. The defendant pleaded (1) in nullo est erratum; (2) that if there was error, it was waived by the confession of the judgment.
On the last circuit, before his 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.
HENDERSON, J. A suit at law is a contest between two parties in a court of justice, the one seeking and the other withholding the thing in contest. The same individual cannot be
at the same time both the person seeking and the person withholding; for it involves an absurdity that a person should seek from himself, or withhold from himself. Between acorporation and the individuals composing it the identity does not exist, and the absurdity above 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...
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Monmouth Inv. Co. v. Means
... ... acts to the injury of the estate committed to his protection ... As said in Pearson v. Nesbit, 12 N.C. 315, 17 ... Am.Dec. 569: ... 'A ... suit at law is a contest between two parties in the court ... of justice; the one ... ...
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Employers Mut. Cas. Co. v. Griffin, 7926SC962
...a part of itself, in tort necessarily must fail, since a person cannot be both plaintiff and defendant in the same action. Pearson v. Nesbit, 12 N.C. 315 (1827); 59 Am.Jur.2d, Parties § Plaintiff insurer, as the subrogee of its insured, takes only the rights which the church would have agai......
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In re Estate of Link
...Court stated long ago, "it involves an absurdity, that a person should seek from himself, or withhold from himself." Pearson v. Nesbit, 12 N.C. 315, 316-17 (1827) (emphases in original). Moreover, as the Tennessee Supreme Court has held, this remains true even when the same person sues and ......
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Provins v. Provins
... ... Harris' Estate, 19 Phila. 322; Perkins v. Se ... Ipsam, 11 R.I. 270; Snyder v. Snyder et al., 96 ... N.Y. 88; Pearson v. Nesbit, 12 N.C. 315, 17 Am. Dec ... Plaintiff ... in her present position is not, however, without a remedy ... The concurrent ... ...