
    Richmond
    M’Clellan v. Kinnaird.
    1849. October Term.
    
    ( Absent Cabell, P.)
    Judgment on a forthcoming bond enjoined at the suit of the surety, on the ground that he had an action pending against the plaintiff in the judgment for a larger amount; and that the plaintiff was insolvent.
    This was a bill to enjoin a judgment on a forthcoming bond, executed by William M’Clellan, with the plaintiff Robert M’Clellan as his surety, to John Kinnaird, for 150 dollars, with interest. The bill charged that a large amount of work had been done by William M’Clellan for Kinnaird, for which there was still due the sum of 2856 dollars. That William M’Clellan sued Kinnaird in the Hustings court of Richmond, for the amount, and at the time of the trial, the plaintiff, Robert M’Clellan, was absent from the City of Rich
      
      mond ; and Kinnaird defended the case, on the ground that he owed the money to Robert M’Clellan, and not to William,; and on this ground he obtained a verdict. That although William M’Clellan was in fact the true creditor of Kinnaird, yet under these circumstances, Robert M’Clellan had brought an action against Kinnaird for the amount; and that suit was still pending. In the mean time, Kinnaird had sued William M’Clellan for a debt of 150 dollars, and had recovered a judgment, and having issued an execution thereon, William, M’Clellan had executed a forthcoming bond, with Robert M’Clellan as his surety. That William M’Clellan and Kinnaird were insolvent, and if the plaintiff was compelled to discharge the judgment on the forthcoming bond, he would not be able to recover it hack from William M’Clellan, nor would he be able to make the money out of Kinnaird, if plaintiff should recover in his action against him.
    The injunction was granted. Whereupon Kinnaird appeared and demurred to the hill; and it was taken for confessed as to William M’Clellan. When the cause came on to he heard, the Court sustained the demurrer, and dissolved the injunction; and then the plaintiff applied to this Court for an appeal, which was allowed.
    
      Grattan, for the appellant.
    
      Daniel and Watkins, for the appellee.
   By the Court.

The decree of the Court below is reversed, the injunction reinstated, and the cause remanded for further proceedings.  