10. Covenants.-The usual covenants in an apprentice's indenture are independent, and the plaintiff need not aver performance on his part: Phillips v. Clift, 4 Hurl. & Nor. 167.

11. Liability of Parent.-That the father of an apprentice may be held liable upon the indenture, by reason of his signature and seal, although there are no express words of covenant binding him: Woodrow v. Coleman, 1 Cranch C. Ct. 171. If a son remains with and performs services for his father after attaining his majority, the law will not, ordinarily, imply a promise on the part of the father to pay for his labor; but if the circumstances show that the expectation of both parties was that he should be compensated, the promise will be implied, and he may recover a quantum meruit: Friermuth v. Friermuth, 46 Cal. 42.

the defendant entered into an agreement with the plaintiff, and his father Benjamin Rider, under his and their hands and seals, a copy of which is hereto annexed.

II. That the defendant has not [instructed the plaintiff in the business of ..... or state any other breach], to his damage dollars.

[Demand of Judgment.]

12. Right of Action.-An apprentice may sue a master for not teaching him his trade, although no indentures were executed, the master having taken him under an order of the court: Adams v. Miller, 1 Cranch C. Ct. 5.

No. 277.

vi. For Breach of Contract to Manufacture Goods. [TITLE.]

The plaintiff complains, and alleges:

........

the

I. That on the....day of..... 187., at defendant promised and agreed with the plaintiff to manufacture and deliver to the plaintiff 400 dozen woolen hose, at the price of ........ dollars for each dozen, for which the plaintiff agreed to pay the defendant dollars.

II. That the plaintiff duly performed all the conditions of said agreement on his part.

III. That defendant did manufacture said hose, under said agreement, but manufactured them in an unskillful and unworkmanlike manner, to the damage of the plaintiff .. dollars.

[Demand of Judgment.]

No. 278.

vii. For Refusing to Accept Manufactured Goods. [TITLE.]

. . . . .,

The plaintiff complains, and alleges: I. That on the.......day of.... 187., at... the defendant contracted with the plaintiff to make for him [describe what], and agreed to pay for the same, upon delivery thereof, .... .. dollars.

II. That the plaintiff made the said goods, and on the .... day of 187., offered to deliver the same to the defendant, and has ever since been ready and willing to deliver them, and has otherwise duly performed all the conditions of said contract on his part.

III. That the defendant has not accepted or paid for the

same.

[Demand of Judgment.]

[Copy of Contract.]

No. 279.

viii. On a Promise to Manufacture Raw Material into Merchantable Goods.

[TITLE.]

The plaintiff complains, and alleges:

I. That on the......day of........, 187., at.... the plaintiff delivered to the defendant leather], of the value of

.....

[sides of dollars, to be manufactured into [harness], for a reasonable compensation, to be paid to the defendant by the plaintiff.

II. That the defendant, in consideration thereof, undertook to manufacture the said [harness], or cause it to be manufactured, from the [leather], and to deliver the same to the plaintiff when so manufactured.

III. That the said [leather] was so manufactured into [harness] by the defendant before the .... day of.................. 187., on which day the plaintiff demanded the same of the defendant, and then and there offered to pay him a reasonable compensation for manufacturing the same.

[Or, III. That the defendant did not manufacture said (leather) into (harness), although a reasonable time therefor elapsed before this action.]

IV. That the defendant, then and ever since, refused and neglected to deliver the same, and has converted them to his own use.

[Or, IV. That the defendant manufactured said (leather) in such a negligent and unskillful manner, that the said (harness) was of no value.]

[Demand of Judgment.]

CHAPTER V.

INDEMNITY.

No. 280.

i. By Retiring Partner, on the Remaining Partner's Promise to Indemnify him against Damage.

[TITLE.]

The plaintiff complains, and alleges:

I. That on the...... day of......., 187., at......., the plaintiff and defendant, being partners in trade under the firm name of A. & B., dissolved the said partnership, and mutually agreed that the defendant should take and keep all the partnership property, pay all debts of the firm, and indemnify the plaintiff against all claims that might be made upon him on account of any indebtedness of the said. firm.

II. That the plaintiff duly performed all the conditions of the said agreement on his part.

III. That on the....day of......

187., a judgment

was recovered against the plaintiff and defendant by one John Doe, in the ..... Court of this State, upon a

debt due from the said firm to the said Doe, and on the ......... day of . . . . . . . ., 187., the plaintiff paid ...... dollars in satisfaction of the same.

IV. That the defendant has not paid the same to the plaintiff.

[Demand of Judgment.]

1. Definition.--Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person: Civil Code, sec. 2772.

2. Actual Damage. In actions upon an ordinary contract to indemnify against loss or damage, the plaintiff must aver actual damage; and if he has paid under a judgment this should be stated, with the date of the judgment, the court in which it was rendered, and the amount of the judgment; while on an agreement to save from liability, actual damage need not be averred (McGee v. Roen 4 Abb. Pr. 8); but consequential damages must be spe

cially alleged: Swan's Pl. 381. For allegations in such actions, sée Allaire v. Ouland, 2 Johns. Cas. 52; Holmes v. Weed, 19 Barb. 128.

3. Administrator's Bond.-Where an administrator makes premature payment of a claim, and takes a bond of indemnity, such a bond would be held legal and binding: Comstock v. Breed, 12 Cal. 289.

4. Attachment-Release from.-Recovery may be had on a bond given to a sheriff, to release property from attachment, to the extent of the penalty: Palmer v. Vance, 13 Cal. 553. Such bond is not a statutory undertaking, and is valid at common law. Execution against the judgment debtor is not a condition precedent to suit on the bond, and any mistake in the recital as to the amount for which attachment issued may be explained and corrected by parol: Id. It takes effect at the time of its delivery: Buffendeau v. Brooks, 28 Cal. 641. Such a bond is for the benefit of the plaintiff, who may sue upon it, and if the sheriff takes a sufficient statutory undertaking, he has no further responsibility: Curiac v. Packard, 29 Cal. 194. The bond given to release property attached, only releases it from the custody of the sheriff, and is not an actual substitution of security, compelling the plaintiff to proceed upon the bond alone to collect his payment: Low v. Adams, 6 Cal. 277. An indemnity bond to the sheriff to retain property seized under attachment, is an instrument necessary to carry the power to sue into effect: Davidson v. Dallas, 8 Cal. 227.

5. Conditions Precedent.

If the obligors undertake to indemnify the sheriff for any damage by reason of any costs, suits, judgments, and execu tions that shall come or be brought against him, the sheriff cannot maintain an action on the bond because judgment has been rendered against him, but must first pay the judgment: Lott v. Mitchell, 32 Cal. 23. If the sheriff is indemnified for the act alone, and a suit is brought against him and judgment recovered, the sheriff cannot afterwards have judgment on the indemnity bond against the sureties upon five days' notice unless he gave the sureties written notice of the action brought against him: Dennis v. Packard, 28 Cal. 101; see sec. 1055, Code C. P.

6. Contracts of Indemnity.-As to contracts of indemnity, and rules in reference thereto, see Theobald's Principal and Surety; Chitty, Jr. Contr. (5 Am. Ed.) 56; 9 Cow. 154; 4 Pick. 83; 8 Wend. 452.

7. Damage must be Shown.-In an action on a bond of indemnity, the plaintiff must set out wherein he has been damnified. A general aver ment of loss is insufficient: Coe v. Rankin, 5 McLean, 354.

8. Demand.—Where defendant agreed to indemnify the plaintiff against loss on a sale of stock, on demand, an action for the deficiency may be maintained at any time after the sale, without a previous demand: Halleckv. Moss, 22 Cal. 266.

9. Extends to Act of Agent.—An indemnity against the acts of a certain person applies also to those of his agent: Civil Code, sec. 2775.

10. Execution, Seizure Under.-An agreement to indemnify a sheriff for seizing property under execution is valid, if the parties are in good faith seeking to enforce a legal right: Stark v. Raney, 18 Cal. 622.

11. Interpretation. In the interpretation of a contract of indemnity the following rules are to be applied, unless a contrary intention appears: 1. Upon an indemnity against liability, expressly, or in other equivalent

terms, the person indemnified is entitled to recover upon becoming liable; 2. Upon an indemnity against claims, or demands, or damages, or costs, expressly, or in other equivalent terms, the person indemnified is not entitled to recover without payment thereof; 3. An indemnity against claims, or demands, or liability, expressly, or in other equivalent terms, embraces the costs of defense against such claims, demands, or liability incurred in good faith, and in the exercise of a reasonable discretion; 4. The person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defense if he chooses to do so; 5. If, after request, the person indemnifying neglects to defend the person indemnified, a recovery against the latter suffered by him in good faith, is conclusive in his favor against the former; 6. If the person indemnifying, whether he is a principal or surety in the agreement, has not reasonable notice of the action or proceeding against the person indemnified, or is not allowed to control its defense, judgment against the latter is only presumptive evidence against the former; 7. A stipulation that a judgment against the person indemnified shall be conclusive upon the person indemnifying, is inapplicable if he had a good defense upon the merits, which by want of ordinary care he failed to establish in the action: Civil Code, sec. 2778.

12 Injunction.—A bond of indemnity, executed in pursuance of articles of agreement, may in equity be restrained so as to conform to those articles. But a departure from the articles must be clearly shown: Finley v. Lynn, 6 Cranch, 238. Thus, under an agreement to indemnify a retiring partner against demand upon the concern, and a bond of indemnity reciting that it was agreed to indemnify against debts, including those due from others which had been assumed: Held, that the bond might be enforced: Id.

13. Joint and Several Liability.-One who indemnifies another against an act to be done by the latter, is liable jointly with the person indemnified, and separately to every person injured by such act: Civil Code, sec. 2777.

14. Liability of Sureties.-Where the sheriff, under a writ of attachment, is about to levy upon the property of a firm, and a bond is executed by third parties as sureties, conditioned to keep harmless and indemnify the sheriff against all damages and expense he may be put to by reason of the non-seizure of the property, and "to pay whatever judgment may be rendered against said defendants;" and judgment was obtained against one only of the defendants-plaintiffs failing on the trial to prove the other to be a partner-the sureties are liable on the bond for the amount of the judgment; that the bond, though not strictly an undertaking under the statute, conforms substantially to its requirements, and must be read by the light of the statute, and interpreted according to the intention of the parties: Heynemann v. Eder, 17 Cal. 433. Such bond will be presumed to have been executed with reference to the provisions of the statute; and will be held such a security, and the fact that judgment was obtained against one only of the defendants, satisfies the condition to "pay whatever judgment may be rendered against said defendants:" Id.

15. Liability, Discharge from.-Whenever the liability of the sureties is fixed by the rendition of a judgment in favor of the plaintiff, the sureties have a right to tender the plaintiff the full amount of the judgment, and if