Ivy v. McIntosh , 1 Gunby 70 ( 1885 )

Mayo, J.

A bond given in a judicial proceeding, without warrant of law or in violation of the provisions thereof, is a mere nullity which binds none of the parties thereto, Unless there are peculiar circumstances or relations between the parties that make the bond a conventional obligation. 29 An. 296, 500.

2. A consent twelve months’bond cannot be enforced by suit on it as a conventional obligation ; such a bond is an absolute nullity, binding no one. It cannot be enforced in conformity to its provisions, and on payment thereof, the surety would not be subrogated to plaintiff’s rights against the principal, a motive without which the bond would not have been given. 6 L. 5, 11; 25 An. 295; C. C. 2824.