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The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) online

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Account-books of the former, when admissible against tlie lat-
ter.— See 37 A. R. 234.

Actions and defenses, as to generally, see 4 A. C. 344; 7 A. C.
1061; 9 A. C. 150.

Admissibility of extrinsic evidence to show relation of prin-
cipal and surety between party to note. — See 20 L. 711.

Alterations of instrument — Effect of on surety's liability. —
See 7 L. 743.

Alteration of terms of lease as discharge of sureties of lessee.
—-See 6 A. C. 359.

Alteration or deviation from contract as a discharge of surety.
—See 2 A. C. 764; 5 A. C. 435; 8 A. C. 241; 10 A. C. 357.

Amounts of liability of surety on official bond. — See 12 A. C.
436.

Apparent principal, wiien may show himself to be a surety. — •
See 17 A. D. 416.

Application of principal and surety's rule as to creditors on
assumption of debt at dissolution of partnership. — See 9 L. N.
S. 88.

Bond executed in blank, surety, when bound by unautliorized
insertions in. — See 54 A. R. 440.

Breach of promise to surety as to getting other sureties. —
See 45 L. 321.

Breach of warranty in the principal contract as defense. — See
21 L. 406.

Conflict of laws as to capacity of married woman to become
surety for her husband. — See .")7 L. 513.

1417



§ 2831 CIVIL CODE. [Div.III.Pt.IV.

Constitutionality of statute authorizing surety company to be-
come surety on bonds required by law. — See 2 A. C. 487.

Construction of contract of surety. — See 8 A. C. 241; 10 A. C.
357.

Contingency of claim — Against surety on bond for title. — See
58 L. 86.

Same — Effect of against estate of deceased sureties. — See 58
L. 82.

Contract of. — See 10 A. C. 357.

Contractor's bond — Release of surety on by premature pay-
ment to principal, extension of time, discharge of surety by. —
See 4 A. C. 883, 884; 5 A. C. 435, 442; 9 A. C. 259.

Contribution — Between sureties and the remedies for its en-
forcement.— See 10 A. S. 639; 70 A. S. 444.

Same — Between cosureties. — See 9 L. 411.

Creditor's duty to surety. — See 115 A. S. 85.

Decree against principal, effect of and vacating or setting
aside. — See 2 L. 644.

Demand and notice not necessary to sustain action by latter
against former. — See 13 A. D. 122.

Different sets of sureties, liability as between. — See 70 A. S.
443

Discharge of surety — As discharge of security given by him. —
See 12 A. C. 550; see "Release," this note.

Same — Breach of promise of surety as to getting other sure-
ties. — See 45 L. 321.

Same — By alteration in or deviation from contract. — See 2
A. C. 764; 5 A. C. 435; 8 A. C. 24; 10 A. C. 357; 7 L. 743.

Same — Same — Of terms of lease as discharge of sureties. —
See 6 A. C. 359.

Same — Same — On contractor's bond by premature payment of
principal. — See 7 A. C. 766.

Same — By alteration of instrument. — See 7 L. 743.

Same — By bank's failure to apt>ly principal's deposit accounts
upon note. — See 8 L. N. S. 944.

Same — By creditor's acceptance of bill or note from debtor. —
See 4 A. C. 884.

Same — By discharge in bankruptcy when on a bond given
by principal in action at law. — See 14 L. N. S. 507.

Same — ^By estoppel to enforce contract of suretyship; re-
lease through mistake. — See 13 L. N. S. 576.

Same — By extension of time — As to generally, see 4 A. C. 883;
5 A. C. 435; 9 A. C. 259.

Same — Same — For levying execution. — See 5 L. N. S. 764.
Same — Same — In consideration of payment of interest. — See 5
A. C. 442.

Same — Same — To grantee who. has assumed mortgage debt. —
See 9 A. C. 259.

1418



Tit.XIII,ch.II,art.T.] SURETYSHIP. § 2831

Same — Same — To principal as a release to one who, on the
face of the instrument is primarily liable, but is in fact a
surety. — See 10 L. N. S. 129.

Same — By failure of bank to apply general deposit in dis-
charge of surety or indorser. — See 7 A. C. 1007.

Same — By failure to enforce lialnlity of maker. — See 18 L.
N. S. 530.

Same — By fraud of principal. — See 2 A. C. 353.

Same — By indulgence of principal. — See 5 A. C. 435.

Same — By negligence of officials. — See 2 A. C. 165, 170.

Same — By obligee's surrender of original obligation and ac-
ceptance of another which is defective. — See 16 L. N. S. 343.

Same — By payment of promissory note by maker, which
proves ineffectual as a satisfaction, as affecting liability of
surety.— See 13 L. N. S. 204.

Same — By payment voidable under bankruptcy act. — See 9
L. N. S. 581.

Same — By release of securities, extent of. — See 3 A. C. 433.

Same — By surrender of security. — See 4 A. C. 431; 10 A. C.
357.

Same — Change of principals to obligation as a. — See 10 L.
N. S. 1160.

Same — For causes existing prior to his entering upon con-
tract of suretyship. — See 63 A. S. 327.

Same — On building contractor's bond by making payments not
authorized by contract. — See 5 L. N. S. 418.

Same — On criminal bail bond by enlistment of principal in
military or naval services. — See 6 A. C. 616.

Same — Surrender of lease containing option to purchase, effect
on liability.— See 9 L. N. S. 557.

Same — What acts amount to. — See 7 L. 405; 13 L. 418.

Distinguished from guaranty. — See 48 A. S. 496; 6 L. 686;
4 W. & P. 3183.

Duration of liability of surety — As to generally, see 1 A. C.
379; 5 A. C. 945.

Same — For default after expiration of term. — See 1 A. C. 383.

Same — On bail bond, whether ends with conviction of prin-
cipal or continues until execution of judgment. — See 3 A. C.
930.

Same — On bond of officer appointed for definite term, but for
whom the law fixes no definite term. — See 5 A. C. 949.

Duty of the creditor to collect of the principal when re-
quested by the surety. — See 34 A. R. 580.

Effect of contingency of claim against estate of deceased
surety. — See 58 L. 82.

Effect of death of cosurety. — See 21 L. 184.

Enjoining judgment — Against or in favor of sureties. — See 31
L. 59.

1419



§ 2831 CIVIL CODE. [Div.III,Pt.IV.

Execution of, formality and effect. — See 2 A. C. 219; 3 A. C.
98; 4 A. C. 344.

Extension of time by the legislature, when releases the
surety. — See 45 A. R. 406.

Failure of one obligor to sig'n bond, when releases the others.
— See 25 A. R. 706.

Failure of principal to sign obligation, as affecting liability
of surety. — See 2 A. C. 225.

Foreign surety company, power to act as surety. — See 48 L.
592.

Fraud of principal as discharge of surety. — See 2 A. C. 353.

Guaranty by surety of other signatures. — See 49 L. 315.

Indemnity — Given to one surety, right of another to benefit
of. — See 15 A. D. 526.

Same — Held by one surety, right of another to participate
in. — See 43 A. D. 563.

Same — Of surety. — See 13 L. 340.

Indulgence to principal as discharge of surety. — See 5 A. C.
435.

Infant's contract of suretyship. — See 18 A. S. 614.

Injunction- — Against judgment entered on confessions against
sureties. — See 30 L. 240.

Same — Against principal to prevent his transferring his prop-
erty to defraud his surety. — See 15 L. N. S. 484.

Same — In behalf of surety against judgment. — See 30 L. 567,

Intervention, right of surety, in action against principal, or
principal in action against surety. — See 68 L. 736.

Judgment against principal — As evidence against sureties. —
See 9 A. C. 153.

Same — Effect of. — See 7 A. C. 1061; 9 A. C. 150.

Same — Extinction of by surety's payment. — See 68 L. 513-585.

Same — Right of surety to sue to set aside. — See 54 L. 765.

Judgments against the former as evidence against the latter.
— See 32 A. D. 202; 83 A. D. 380.

Law as to becoming surety for a surety maker. — See 21 L.
247-252.

Liability of sureties — As to generally, see 8 L. N. S. 1223; 9 L.
N. S. 889; 14 L. N. S. 376.

Same — Actions and defenses, as to generally, see 4 A. C. 344;
6 A. C. 616; 7 A. C. 1063; 9 A. C. 150.

Same — Construction of contract. — See 8 A. C. 241; 10 A.
C. 357.

Same — ^Duration of liability. — See 1 A. C. 379; 5 A. C. 945, 949.

Same — Effect of judgment against principal. — See 7 A. C.
1061; 9 A. C. 150, 153.

Same — For particular debts or acts. — See 2 A. C. 353; 4 A.
C. 344; 6 A. C. 917.

Same — For past defaults, or additional and substituted bonds
of guardian. — See 4 A. C. 345.

1420



I



Tit.Xin.ch.II.art.I.] SURETYSHIP. §2831

Same — In case of fraud of principal. — See 21 L. 409-413.
Same — Not to be cxtonded by implication. — See 13 L. 418.
Same — Of executor or administrator for debt of their prin-
cipal to decedent. — See 2 A. C. 355.

Same — On bond of public officer for act wholly outside of
official duty. — See 9 A. C. 919.

Same — On official bond, not affected by negligence or oml.s-
sion of other officer. — See 2 A. C. 170.

Same — Restriction of to agreement. — See 3 L. 168; 4 L. 680;
9 L. 353.

Same — When bound by signature. — See 8 L. 735.
Same — When the name of the principal or of a cosurety is
forged. — See 8 A. S. 246.

Limitation of actions by one surety against another. — See 61
A. D. 504.

Married woman as to becoming surety for her husband. — See
57 K 513; 66 L. 632.

Negligence of officers as discharge of surety. — See 2 A. C;
165. 170.

Notice of default necessary to bind guarantor. — See 20 L. 257.
Number of sureties. — See 9 A. C. 707.

Payment — Of debt by bankrupt as a preference to a surety
therefor. — See 18 L. N. S. 660.

Same — Of whole debt by surety as essential to right of sub-
rogation to creditors' securities. — See 6 A. C. 204.

Principal and surety, admissibility of extrinsic evidence to
show relation of to note. — See 20 L. 711.

Priority of claims of sureties against property in hands of
receiver over recorded liens. — See 2 L. N. S. 1026.

Proceedings by surfty to compel principal to discharge his
obligation.— See 117 A. S. 35.

Qualiflrations of surety company as surety upon appeal bond.
—See 3 A. C. 98.

Receipts of ofllcers, when evldonce against their sureties. —
See 3 A. S. 749.

Relation of retiring partner as surety upon dissolution of
partnership. — See 1 A. C. 725.

Release — Of mortgagor as surety by mortgagee dealing with
vendee who has assumed mortgage. — See 16 L. 85.

Same — Of principal, wlien may not relieve surety. — See 73
A. D. 297.

Release of surety — As affecting liability of principal. — See S
A. C. 468; see "Discharge," this note.

Same — By alteration of Instrument. — See 7 L. 743.
Same — By an acceptance or other evidence of Indebtedness. —
See 33 A. R. 85.

Same — By changing tlie duties or obligations of the princi-
pal. — See 6 A. S. 458.

1421



§ 2831 CIVIL CODE. [Div.III.Pt.IV.

Same — By indulgence of principal. — See 30 A. D. 257.

Same — What operates as. — See 28 A. S. 691.

Relief of surety in equity. — See 7 L. 84.

Right of surety — As to generally, see 5 A. C. 435; 7 A. C. 78.

Same — On appeal or supersedeas bond, to look to the sure-
ties on a prior bond of the same principal. — See 6 L. N. S. 1021.

Same — On bail bond to pursue principal into another state
for the purpose of arresting him. — See 14 L. 605.

Same — On payment of judgment. — See 16 L. 115.

Samc-^Prior to obtaining a judgment or lien, to enjoin prin-
cipal's transfer of property to defraud him when. — See 15 L.
N. S. 484.

Same — To control application of collaterals. — See 12 L. 131.

Same — To interpose an independent cause of action in favor
of the principal against the plaintiff as a defense or counter-
claim. — See 18 L. N. S. 600.

Same — To pay debt of principal. — See 1 L. 642.

Same — To set off — Generally, see 13 L. 239.

Saine — To subrogation on payment of whole debt. — See 6 A.
C. 204.

Same — To sue to set aside judgment against principal. — See
54 Lr. 765.

Rights of creditors — Against principal — As to, generally, see
3 A. C. 465.

Same — Same — Release of surety as affecting. — See 3 A. C. 468.

Same — To be subrogated to security given to surety. — See 6
A. C. 395.

Set-off — In bankruptcy cases. — See 55 L. 68.

Same — In insolvency cases. — See 17 L. 460.

Same — Rights of surety, as to generally, see 13 L. 239.

Signature of name of partnership below the name of another
signer, does the fact raise a presumption that it is as a surety
only.— See 10 L. N. S. 426.

Specific performance of contract to give indemnity to surety.
— See 6 L. N. S. 590.

Statute of frauds — As to contract between sureties. — See 39
L. 378.

Statute of limitations — Time commences to run to bar an
action against cosurety for contribution, when. — See 18 L. N.
S. 585.

Subrogation, as to right of by surety. — See 1 L. 642; 5 L.
282; 7 L. 84; 9 L. 277; 29 L. 240-248.

Subrogation of creditor to securities held by surety. — See 5
L. 790.

Successive bonds, liability of sureties upon. — See 10 A. S. 843.

Surety company — Constitutionality of statute authorizing, to
become surety upon bonds required by law. — See 2 A. C. 487.

Same — Foreign, power to act as surety. — See 48 L. 592.

1422



I

i TJt.XIII.ch.n.art.I.] APPARENT PUINCII'AI.. §2832

Same — Power to act as surety. — See 48 L. 589.

Same — Qualifications of as surety upon appeal bond. — See 3
A. C. 98.

Suretyship of wife under mortgage of separate property fi)r
husband's debts. — See 5 A. C. 643.

Surrender of security as discharge of surety. — See 3 A. C.
431; 7 A. C. 1007: 10 A. C. 357.

Termination of, right of surety to bring about by notice to
obligee before breach of contract. — See 11 A. C. 272.

Usury in consideration for extension, effect of. — See 52 L. 312.

Validity and effect of bond having a fewer than the required
number of sureties. — See 9 A. C. 707.

Validity of agreement with surety as to custody and control
of trust funds. — See 16 L. N. S. 994.

Validity of incumbrances by husband and wife of properly
held by the entireties to secure the individual debt of the hus-
band. — See 66 L. 632.

Validity of sale to surety on executor's bond. — See 4 L. N.
S. 820.

Vendor as surety in respect to mortgage. — See 5 L. 277; 8
L. 317.

Who may become surety. — See 2 A. C. 485, 487; 3 A. C. 98.

When surety bound by signature. — See 8 L. 735.

S l»s:{->. VriVVKKM THIX IIVVL .H.VV SHOW THAT HK IS

M'liETV. One who aitpear.s tu he a principal, whether by the
terms of a written instrument or otherwise, may show that
he is in fact a surety, except as against |)er.sons who have
acted on the faith of his ai)i)arent character of principal.

llUliirj: i:ii:i<ttMl .March 21, 1872.

See Kerr's Cyc. C. C. for 14 pars, annotation.

55 C. 340, 342 (construed): 60 C. 387. 392 (applied); 62 C.
496, 502, 503 (cited); 76 C. 127, 130, 17 P. 937 (construed): 77

C. 476. 477, 19 P. 882, 883 (applied); 109 C. 406, 409. 42 P. 159
(applied »: 114 C. 620. 625. 626. 627. 46 P. 613 (applied); 136 C.
368, 371, 68 P. 1032 (applied); 137 C. 685, 692, 70 P. 771 (applied);
139 C. 416, 418, 73 P. 179 (npplledl; 145 C. 497, 498, 78 P. 497
(cited); 3 C. A. 696. 699. 86 P. 981 (applied).

As to nuiiiy miscellaneous matters as to svirotyshlp. see nolo
t 2S31. ante.

As to right of nppar<nt principal to show that In- Is siir.ty.
see 17 A. J\ 416; 32 A. D. 256; 34 A. D. 272: 43 A !• i • A

D. 292; 85 A. D. 58.



1423



§§ 2836, 2837 CIVIL CODE. [Div.III.Pt.IV.

ARTICLE II.

LIABILITY OF SURETIES.

§ 2S36. Limit of surety's obligation.
§ 2837. Rules of interpretation.

§ 2838. Judgment against surety does not alter the relation.
§ 2839. ^'urety exonerated by performance or offer of perform-
ance.
§ 2840. Surety discharged by certain acts of the creditor.

§ 2836. LIMIT OF SURETY'S OBLIGATION. A surety can-
not be held beyond the express terms of his contract, and if
such contract prescribes a penalty for its breach, he cannot
in any case be liable for more than the penalty.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 16 pars, annotation.

71 C. 295, 300, 12 P. 167, 169 (referred to); 81 C. 528, 532, 537,
22 P. 920, 922, 923 (modifying §2837, applied); 108 C. 562, 565,
41 P. 445 (applied); 116 C. 32, 36, 47 P. 772 (applied); 119 C.
249, 257, 47 P. 124, 51 P. 340 (construed); 2 C. A. 561, 565, 83
P. 1086, 1087 (applied).

As to liability of surety commensurate with that of principal,
see 38 A. S. 712.

As to liability of sureties on official bond, see Kerr's Cyc.
Pol. C. art. IX.

As to liability of surety when name of principal or cosurety
is forged, see 8 A. S. 246.

As to limitation of liability of surety to terms of contract,
see 74 A. D. 545; 7 A. S. 372; 38 A. S. 702; also 3 L. 168, 482;
9 L. 353; 13 L. 418.

As to many miscellaneous matters as to suretyship, see note
§ 2831, ante.

§2837. RULES OF INTERPRETATION. In interpreting
the terms of a contract of suretyship, the same rules are to
be observed as in the case of other contracts.

Hi-story: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.

20 P. 553, 555 (applied); 78 C. 443, 448, 21 P. 2, 4 (referred
to); 80 C. 611, 618, 22 P. 327, 329 (applied); 81 C. 528, 532, 22
P. 920, 922 (construed); 100 C. 100, 104, 34 P. 627 (applied);

1424



i Tit.XIII.ch.II,art.II.] EXONERATION. §§2838-2840

119 C. 249, 257, 47 P. 124, 51 P. 340 (applied with $2830); 138
C. 724, 730, 72 P. 352 (applied).

As to construction of contract of suretyship, see 60 A. S. 419;
21 L. 247.

As to many miscellaneous matters as to suretyship, see note
i 2831, ante.

§2838. JUI)OME>T AGAINST SIRETV D(»ES >0T
ALTER THE RELATION. Notwithstanding the recovery of
judgment by a creditor against a surety, tiie latter still occu-
pies the relation of surety.

HIcitory: Enacted March 21, 1872.

As to agreement by creditor after Judgment not to collect,
see Kerr's Cyc. C. C. § 2838, note.

As to continuation of relation of principal and surety after
judgment, see 42 A. D. 67; 44 A. D. 384; 46 A. D. 434.

As to many miscellaneous matters as to suretyship, see note
$ 2831, ante.

As to release of surety by extension of time after judgment,
see Kerr's Cyc. C. C. 5 2819 note.

§2s:}<>. SIRKTV KXONKH ATEI) HY 1»ERF(M{.MAN( E i)\i
OFFER OF rERF(M{.>IAN(E. FcMlonnaiice of the priiiciiial
obligation, or an offer of such performance, duly made a.s pro-
vided in this code, exonerates a surety.

IIlNtory: Enacted March 21, 1872; amended March 30. 1874.
Code Amdts. 1873-4, p. i;GO.

See Kerr's Cyc. C. C. for 13 purs, annotation.

98 C. 390, 399. 33 P. 433 (construed, not affected l>y Jir)O0>;
139 C. 416, 418, 73 P. 179 (applied).

As to many miscellaneous matters as to suretyship, see note
t 2831, ante.

§2840. SIRETV I)IS( 11 AlUiEl) RV (ERTAIV \( |s OF
THE CREDITOR. A surety is exonerated:

1. In like manner with a guarantor;

2. To the extent to wliich lie is i)rejudiced by any act of
the creditor which would naturally j)rove injurious to the
remedies of the surety or inconsistent with his iii:hts. or
which lessens his security; or,

3. To the extent to which ho is prejudiced by aii nnnssKin

1425



§ 2840 CIVIL CODE. [Div.III,Pt.IV.

of the creditor to do anything, when required by the surety,
which it is his duty to do.

History: Enacted March 21, 1S72.

See Kerr's Cyc. C. C. for 8 pars, annotation.

6 P. 853, 857 (cited); 77 C. 476, 477, 19 P. 882, 883 (applied);
78 C. 443, 448, 21 P. 2, 4 (referred to); 87 C. 423, 25 P. 552, 553
(cited); 91 C. 206, 210, 27 P. 648, 649 (applied); 96 C. 623, 626,
641, 29 P. 500, 503, 31 P. 588, 18 L. 465 (referred to in dis. op.);
112 C. 31, 35, 53 A. S. 155, 44 P. 305 (applied); 114 C. 620, 625,
626, 627, 46 P. 613 (construed); 120 C. 495, 501, 52 P. 848
(applied); 130 C. 245, 254, 62 P. 466, 600 (applied); 139 C. 416, 418,
73 P. 179 (applied); 144 C. 91, 96, 77 P. 765 (applied); 145 C.
241, 244, 78 P. 734 (applied); 146 C. 518, 520, 80 P. 695, 696
(applied).

As to discharge of surety by concealment by obligee of
default of employee, see note 54 L. 945; 13 A. D. 463; 6 A. R.
458; 33 A. R. 63; 39 A. R. 186; 62 A. S. 154; 64 A. S. 479.

As to discharge of surety by change in principal's duties, see
32 A. R. 242; 60 A. S. 419.

As to discharge of surety by his death, see 68 A. D. 763; 30
A. R. 56; 22 A. S. 814; 63 A. S. 63.

As to discharge of surety in general, see 28 A. S. 691; see also
Kerr's Cyc. C. C. §§ 2819, 2845 and notes.

As to discharge of surety by act of creditor, see 12 L. 418;
29 A. D. 225; 38 A. D. 379; 90 A. D. 415; 54 A. S. 257; 43 A. D.
408; 74 A. D. 545.

As to discharge of surety by matters existing at or prior to
entering into contract, see 63 A. S. 327.

As to discharge of surety by running of statute of limitations
against principal, see 60 A. S. 208.

As to exoneration of surety by concealment by employer,
see 62 A. S. 926; 67 A. S. 319; 21 L. 411.

As to exoneration of surety in same manner as guarantor, see
Kerr's Cyc. C. C. § 2819 and note.

As to liability of sureties on employee's bond as to duties in
capacity indemnified though other duties are performed, see
42 A. R. 404.

As to liability of surety on a new promise after discharged
by statute of limitations, see 68 A. S. 516.

As to many miscellaneous matters as to suretyship, see note
§ 2831, ante.

As to release of surety by neglect of creditor to sue principal,
see Kerr's Cyc. C. C. § 2823.

As to release of surety by release of cosurety, see Kerr's Cyc.
C. C. § 1543 and note.

As to running of statute of limitations against surety, see
Kerr's Cyc. C. C. P. title 11.

1426



J



Tit.XIII,ch.lI,art.lI.] SURKTY'S RIGHTS. §§ 2844, 2845

ARTICLE III.

RIGHTS OF SURETIES.

§ 2844. Surety has rights of guarantor.

§ 2845. Surety may require the creditor to proceed against the

principal.
§ 2846. Surety may compel principal to perform obligations,

when due.
§ 2847. A prinQipal bound to reimburse his surety.
§ 2848. The surety acquires the right of the creditor.
§ 2849. Surety entitled to benefit of securities held by creditor.
§ 2850. The property of principal to be taken first.

§ 2844. SURETY HAS RIGHTS OF GUARANTOR. A surety
has all the rights of a guarantor, whether he becomes per-
sonally responsible or not.

History: Enacted March 21, 1872.

77 C. 476, 477, 19 P. 882 (applied); 78 C. 443, 448, 21 P. 2, 4
(referred to); 105 C. 434, 441, 39 P. 20 (applied); 109 C. 211, 221.
41 P. 1028 (applied); 110 C. 658, 665, 43 P. 202 (applied); 120 C.
495, 501, 52 P. 848 (applied); 141 C. 674, 677, 75 P. 296 (applied);
145 C. 241, 244, 78 P. 734 (applied).

As to indemnity of surety, see 13 L. 340.

As to liability of surety on obligation obtained by fraud, see
21 L. 409.

As to many miscellaneous matters as to suretyship, see note
§ 2831, ante.

As to necessity of demand or notice, see Kerr's Cyc. C. C.
§ 2807 and note.

As to right of surety to revoke suretj'ship of continuing lia-
bility, see Kerr's Cyc. C. C. § 2815 and note.

As to right of surety to take advantage of usurious transac-
tions, see 22 A. R. 290, 293.

§2845. SURETY MAY RE^UIKE THE CREDITOR TO
PROCEED AOAI>ST THE THIXirAL. A surety may re-
quire his creditor to proceed against the principal, or to pur-
sue any other remedy in his power which the surety cannot
himself pursue, and which would lighten his burden : and
if in such case the creditor neglects to do so, the surety is
exonerated to the extent to which he is thereby prejudiced.

History: Enacted March 21, 1872.
1427



§§ 2846, 2847 CIVIL CODE. [Div.in,Pt.IV.

See Kerr's Cyc. C. C. for 4 pars, annotation.

53 C. 686, 689 (construed).

As to discharge of surety by failure of creditor to collect debt
of principal after request by surety, see 7 A. D. 370; 11 A. D.
589; also note 7 L. 405; brief 27 L. 257.

As to discharge of surety by failure of creditor to sue prin-
cipal upon request, see 34 A. R. 580.

As to enjoining judgment against or in favor of surety, see
31 L. 59.

As to many miscellaneous matters as to suretyship, see note
§ 2831, ante.

§2846. SIJJETY MAY COMPEL PRINCIPAL TO PER-
FORM ORLIGATIOXS, WHEN DUE. A surety may compel his
principal to perform the obligation when due.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 3 pars, annotation.
53 C. 686, 689 (construed).

As to many miscellaneous matters as to suretyship, see note



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