Pearson v. . Nesbit

12 N.C. 315

• Court: Supreme Court of North Carolina
• Decided: December 5, 1827
• Status: Published

Opinion

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 him self, 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.