McElhanon v. McElhanon ex rel. LeCompte

Mr. Justice McAllister delivered the opinion of the Court: John McElhanon instituted a suit in chancery against James Hughes, and applied for an injunction. He was required to give a bond to Hughes in the penal sum of $500, with James M. McElhanon as his security. The bond was given, and now John McElhanon, averring that he is the assignee of Hughes in bankruptcy, brings debt upon that bond, against himself and surety, for the use of Thomas J. Lecompte. The default of defendants below was entered and plaintiffs’ damages assessed at $50, whereupon judgment was rendered in favor of plaintiff, for debt, $500, to be discharged upon payment of the damages. The case was brought to this court by writ of error, and the principal error assigned is the insufficiency of the declaration. Chitty says that “it is an answer to an action that a party is legally interested in each side of the question. A party can not be both plaintiff and defendant in an action.” 1 Chit. PI. 40. This rule will operate, although the party appears on one side in his personal and on the other in his official character. Pearson v. Nesbitt, 1 Dev. 315, 5 ib. 288 ; Thompson v. Page, 1 Metcalf, 565. The judgment of the court below is reversed. Judgment reversed.