Kingsbury v. Clark

This action is brought on a penal bond conditioned that Alfred Clark should appear before the superior court, and answer to (a) complaint of Julia C. Wilmot, *409and abide the judgment of the court on said complaint. This complaint was a nullity ; Julia C. Wilmot could not prosecute it ; and no proceedings could be had against said Clark thereon. The condition, then, could not be performed or broken. It was totally void, and no action can be maintained on the bond.

It was no part of the condition of the bond that Alfred Clark should appear and answer to a complaint exhibited by a proper informing officer. His not appearing to answer to the complaint thus filed against him was no forfeiture of the bond, and to render him now liable would be to subject him on a contract he had never made.

I should advise the superior court, that this action is not sustainable.

In this opinion the other Judges severally concurred.

Judgment to be for defendant.