ceedings brought against the latter in respect to the matters embraced by the indemnity, but the person indemnified has the right to conduct such defenses, 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 ;7 6. If the person indemnifying, whether he is a principal or a 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.9 Scott v. Tyler, 14 Barb., 202; Chace v. Hinman, 8 Wend., 452; Weble v. Pond, 19 id., 423; Churchill v. Hunt, 3 Den., 321; Gilbert v. Wiman, 1 N. Y., 350; and see Westervelt v. Smith, 2 Duer, 449; S. C., 12 N. Y. Leg. Obs., 78. 'Aberdeen v. Blackmar, 6 Hill, 324; Scott v. Tyler, 14 Barb., 202; Campbell v. Jones, 4 Wend., 306; Westervelt v. Smith, 2 Duer, 449; Mott v. Hicks, 1 Short v. Kalloway, 11 Ad. & El., 28. ⚫ Trustees of Newburgh v. Gallatian, 4 Cow., 340. 6 See Peck v. Acker, 20 Wend., 605, where this principle was applied to the case of sheriff's. 'Aberdeen v. Blackmar, 6 Hill, 324; Beers v. Pinney, 12 Wend., 308; Trustees of Newburgh v. Gallatian, 4 Aberdeen v. Blackmar, 6 Hill, 324; Riley v. Seymour, When person indem nifying actions (Trustees of Newburgh v. Gallatian, 4 Cow., 340). An indemnity against all claims or demands, or in other equivalent terms, has been held not to embrace groundless demands (Luddington v. Pulver, 16 Wend., 404). "Bridgeport Ins. Co. v. Wilson, 7 Bosw., 427. $1531. Where one, at the request of another, en is a surety. gages 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. Bail, what. How regu lated. S1532. Upon those contracts of indemnity which are taken in legal proceedings, as security for the performance of an obligation imposed or declared by the tribunals, and known as undertakings or recognizances, the sureties are called bail. S1533. The obligations of bail are governed by the statutes specially applicable thereto TITLE XIII. GUARANTY. CHAPTER I. Guaranty in general. CHAPTER I. GUARANTY IN GENERAL. ARTICLE I. Definition of guaranty. III. Interpretation of guaranty. V. Continuing guaranty. VI. Exoneration of guarantors. ARTICLE I. DEFINITION OF GUARANTY. SECTION 1534. Guaranty, what. 1535. Knowledge of principal not necessary to creation of guaranty. S1534. A guaranty is a promise to answer for the Guaranty, debt, default or miscarriage of another person. This definition is in the precise language of the statute what. S1535. A person may become guarantor even Knowledge without the knowledge or consent of the principal. Code Napoleon, 2014. 57 of principal not neces sary to creation of guaranty. Necessity of a consideration. Guaranty to be in writing, &c. ARTICLE II. CREATION OF GUARANTY. SECTION 1536. Necessity of a consideration. 1537. Guaranty to be in writing, &c. 1538. Engagement to answer for obligation of another, when deemed original. 1539. Acceptance of guaranty. S1536. Where a guaranty is entered into at the same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms, with that obligation, a part of the consideration to him, no other consideration need exist. In all other cases there must be a consideration distinct from that of the original obligation. See Mallory v. Gillett, 21 N. Y., 412. The person to whom a guaranty is made, is here called the guarantee. This is the proper legal meaning of the word (see Bouvier's Dictionary, also Webster and Worcester), although it is often used in another sense. S1537. Except as prescribed by the next section, a guaranty must be in writing, and signed by the guarantor; but the writing need not express a consideration. The familiar provision of the Revised Statutes, made every special promise to answer for the debt, default or miscarriage of another person, void, unless "some note or memorandum thereof expressing the consideration be in writing, &c. (2 Rev. Stat., 135, § 2, subd. 2). In the draft of this Code, the Commissioners recommended that the requirement that the consideration be expressed, should be omitted (Dr. Civ. Code, § 1380). This change in the law has since been made, by the Legislature, by Laws of 1863, ch. 464; and the section in the text, therefore, corresponds to the existing law. The Commissioners have inserted in the text an express provision that the writing need not express a consideration, because by the section immediately preceding an actual consideration is necessary to support a guaranty in some cases, while in others none is required. It has been lately held by the Court of Appeals that a contract required by the statute of frauds to be in writing, cannot be partly in writing and partly oral; In England the statute, 19 & 20 Vict., c. 97, § 3, enables Engageanswer for ment to an obligation not $1538. A promise to answer for the obligation of another, in any of the following cases, is deemed original obligation of the promiser,' and need be in writing: 1. Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise; or by one who has received a discharge from an obligation in whole or in part, in consideration of such promise;2 2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety;3 3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor; or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprisonment under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promiser, whether moving from either party to the antecedent obligation, or from another person; of another, when deemed original. |