he refuses to receive the same, the sureties are discharged from their obligation on the undertaking: Hayes v. Josephi, 26 Cal. 535. Such tender is equivalent to payment or release by said plaintiff. The sureties are likewise discharged where the principal tenders to the plaintiff the full amount of his debt and costs, and the plaintiff refuses to receive the tender: Curiac v. Packard, 29 Cal. 194. 16. Material Averment.-In an action on a bond to indemnify the plaintiff against damages he might sustain by the levy of an attachment, the plaintiff alleged the recovery of a judgment against plaintiff for damages against which he was indemnified, and the payment of said judgment. The averment of payment was material to plaintiff's right to recover for the amount of such judgment: Roussin v. Stewart, 33 Cal. 208. 17. Necessary Expenses.-The averment that the plaintiff necessarily incurred expenses, is equivalent to the allegation that he incurred necessary expenses: Glover v Tuck, 1 Hill, 66. And the complaint must show how and in what manner these necessary expenses were incurred, naming the court in the allegation: Patton v. Foote, 1 Wend. 207. But the failure to make such an averment is not fatal; it is at most but an irregularity: Packard v. Hill, 7 Cow. 434. 18. Notice to Sureties. If an action be brought against a sheriff for an act done by virtue of his office, and he give written notice thereof to the sureties on any bond of indemnity received by him, the judgment recovered therein shall be conclusive evidence of his right to recover against such sureties; and the court or judge in vacation may, on motion, upon notice of five days, order judgment to be entered up against them for the amount so recovered, including costs: Cal. Code Civ. Proced., sec. 1055. The provision of the Practice Act is founded upon the principle that the action, under such circumstances, is in substance against the indemnifier, the real party in interest, and that he has in that action an opportunity to make any defense that may exist: Dutil v. Pacheco, 21 Cal. 438. Where, therefore, the indemnifier has been so notified, he cannot maintain a bill in equity to set aside the judgment obtained therein, except under such conditions as would have enabled him to maintain it, had he been the nominal as well as real party defendant to the first action: Id. 19. Remedy. Where an indemnity bond is given to a sheriff to hold him harmless, his remedy at law on the bond is clear for the amount of any such judgment, whether he be solvent or not, or whether his official sureties could be held or not: While v. Fratt, 13 Cal. 521. 20. Sale under Execution.-A bond given to a sheriff to indemnify him for any loss or damage he may sustain by selling property levied on by him, by virtue of an execution, in violation of an order enjoining its sale, is void, because an unlawful contract: Buffendeau v. Brooks, 28 Cal. 641. 21. Trespass.-An agreement to indemnify a party for a willful trespass about to be committed, is void, as against public policy: Stark v. Raney, 18 Cal. 622. 22. Void.-An agreement to indemnify a person against an act thereafter to be done, is void, if the act be known by such person at the time of doing it, to be unlawful: Civil Code, sec. 2773. But an agreement to indemnify against an act already done, is valid, even though the act was known to be wrongful, unless it was a felony: Id., sec. 2774. No. 281. ii. Against Sureties in Partner's Bond of Indemnity against Liability. [TITLE.] The plaintiff complains, and alleges: I. That on the....day of........, 187., the plaintiff and one A. B. were copartners in business as merchants, in the city of........, under the firm name of A. B. & Co., and thereafter on the same day they dissolved their connection as such copartners, and thereupon entered into an agreement in writing, of said date, duly executed and signed by them respectively, whereby it was, among other things, mutually agreed that the said A. B. should retain and keep to his sole and separate use all and singular the partnership property of every name and character, whether in action or possession, and wheresoever situated; and in consideration thereof, that he should pay and discharge the debts so due by the said firm, to the extent of........dollars, from his own individual resources, and to the like extent hold the plaintiff harmless and indemnified, of and from and by reason of any and all claims or liabilities due by said firm, a copy of which agreement is hereto annexed as a part of this complaint, marked "Exhibit A." II. That the defendants, in consideration of said agreement between said A. B. and the plaintiff, and of one dollar to each of them then paid by the plaintiff, entered into an agreement executed and signed by them respectively, a copy whereof is annexed hereto as a part of this complaint, and marked "Exhibit "B," whereby they severally undertook and bound themselves to the plaintiff, for the faithful performance by the said A. B. of the covenants in said agreement, to be kept and performed on said A. B.'s part. III. That said A. B., under his said agreement with the plaintiff, retained and kept to his sole and separate use all the partnership property of the firm; but has not, pursuant thereto, paid and discharged the debts due by said firm to the extent aforesaid; and has failed to hold this plaintiff harmless and indemnified to the like extent, of and from and by reason of any claims or liabilities due by the said firm. IV. That at the time of the dissolution of the partnership, and of the making of the agreement aforesaid, the said firm was indebted to the firm of R. & Co., of for mer chandise sold and delivered, in the sum of ........ dollars, which was then due and payable; which indebtedness formed a part of the dollars, debts of A. B. & Co., and was included among such debts, to be paid by the said A. B., under his agreement aforesaid with the plaintiff; but the said A. B., although requested, would not pay R. & Co. their said demand, or any part thereof. V. That on the ...... day of ...... last, an action was commenced by the plaintiff in the [state the court], to recover upon and by virtue of the aforesaid agreement, from the said A. B., the said amount, with interest, then due by the said A. B. & Co. to the said firm of R. & Co., amounting to dollars, and interest thereon; and such proceedings were thereupon had, that on the ...... day of ...... 187., judgment was rendered in such action in favor of the plaintiff against the said A. B., for the sum of ....... dollars, including costs; upon which judgment execution was at once issued against the said A. B., and returned wholly unsatisfied. VI. That the plaintiff has paid. ... dollars, the amount of said judgment, and other necessary costs, disbursements, and attorneys' fees therein, amounting to ...... dollars. VII. That he has demanded from the defendants payment of the said amounts, but they have not paid the same. [Demand of Judgment.] [Annex Copies of Agreements, marked Exhibits "A" and "B."] 23. Notice of Debt.-That the defendants had notice of the debt need not be alleged, as it is matter which lies properly in the knowledge of the defendant, especially if it is averred that the books and papers of the firm were transferred to the defendants: Clough v. Hoffman, 5 Wend. 499. 24. Partnership Indemnity.-Where a partner, in retiring, covenants to indemnify his successors against all liabilities connected with the basiness in which the parties had before been engaged, the covenant did not apply to the liabilities incurred by the plaintiff while he carried on the business on his own account: Haskell v. Moore, 29 Cal. 437. No. 282. iii. Surety against Principal, for Indemnity against Liability as Surety. [TITLE.] The plaintiff complains, and alleges: I. That on the...... day of........, 187., at..... in consideration that the plaintiff would become surety for him, by executing an undertaking, of which a copy is an nexed as a part of this complaint, marked "Exhibit A," agreed with the plaintiff that he would indemnify him, and save him harmless from and against all damages, costs, and charges which he might sustain by reason of his becoming surety as aforesaid. II. That the plaintiff, confiding in such promise of the defendant, executed and delivered such undertaking. .. III. That the defendant did not indemnify the plaintiff, and save him harmless from such damages, costs, and charges; but, on the contrary, the plaintiff, under a judgment, on the .... day of ....., 187., rendered against him by the Court, at in an action brought against him upon said undertaking, paid, on the ..... day of ... dollars to in satisfaction and discharge of said undertaking, and also necessary costs and expenses in said action and on account of said undertaking, to the amount of .......... dollars. IV. That notice thereof was given to the defendant, and that the plaintiff duly performed all the conditions of the said agreement on his part. V. That the defendant has not paid the same to the plaintiff. [Demand of Judgment.] [Annex Copy of Undertaking, marked "Exhibit A."] 25. Costs. As to the right to recover costs paid and incurred by the surety, see Chitt. Jr. Contr. (5 Am. Ed.) 504; 6 Johns. 131; 1 Pet. 350; 17 Eng. C. L. Rep. 457; 4 Taunt. 464; 19 Eng. C. L. Rep. 338; 16 Johns. 70; 2 Wend. 484; 2 McCord, 159. 26. Right of Surety.-Where Jones, for the accommodation of Smith, indorses a note to Stiles, and Smith delivers an article of property to Jones to indemnify him against his liability on the indorsement, Stiles can in equity avail himself of the security for the satisfaction of the note. Jones merely seeks to indemnify himself; he is not to make profit out of the indorsement. He is personally liable to pay the whole debt, whether he receives anything from the principal or not, and it is his duty to pay it; and as Jones holds property in his hands, belonging to his principal, expressly for his indemnity, if it is applied to the payment of the debt, both the duty of himself and his principal is discharged, and the indemnity at the same time satisfied: Van Orden v. Durham, 35 Cal. 145. 27. When Indemnitor a Surety.-Where one, at the request of ananother, engages to answer in damages, whether liquidated or unliquidated, for any violation of duty on the part of the latter, he is entitled to be reimbursed in the same manner as a surety, for whatever he may pay: Civil Code, sec. 2779. [TITLE.] No. 283. iv. Sub-Tenant against his Immediate Lessor. The plaintiff complains, and alleges: I. That, at the times hereinafter mentioned, the defendant held certain premises [describe them], as tenant thereof to one A. B., at a monthly rent of . . . . . dollars, payable by the defendant to said A. B. on the [state time of payment.] ..... II. That on the .. day of 187., in consideration that the plaintiff then became the tenant to the defendant of said premises, at a monthly rent of ........ dollars, payable to him by the plaintiff, the defendant gave to the plaintiff an agreement to indemnify him, of which the following is a copy [copy agreement]. .... III. That the defendant, contrary to his agreement, failed to pay the rent for the month of which was during the tenancy of the plaintiff under said agreement. IV. That by reason thereof, said A. B., on the......day of......., 187., in the Court, commenced proceedings to recover possession of said premises, which were then occupied by the plaintiff under said agreement, for the non-payment of said rent; and thereby the plaintiff, on the ...... day of compelled to pay to said A. B., to the use of the defendant, the sum of dollars, the amount of said rent, todollars, the costs, disbursements, gether with and attorneys' fees therein. 187., at ... was V. That he has demanded from the defendant payment of the said amounts, but he has not paid the same. [Demand of Judgment.] 28. Consequential Damages.--To recover consequential damages or costs, the averment must be special. 29. Eviction by Wrong Doer.-If a tenant is evicted by a wrong doer, the landlord is not bound to indemnify him: Schilling v. Holmes, 23 Cal. 227. No. 284. V. On Agreement of Indemnity to Plaintiff for Defending Action for Surrender of Property. [TITLE.] The plaintiff complains, and alleges: I. That on or about the.. day of.. 187., one A. B. deposited with the plaintiff. ... dollars. |