Page:Black's Law Dictionary (Second Edition).djvu/559

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the quantity or quality contemplated by the parties in the subject-matter of the contract. Sturges v. Bani: of Circlevilie, 11 Ohio St. 169, 75 Am. Dec. 296. But in stiict legal usage the two terms are wideiy distinguished in this, that a warranty is an absolute undertaking or liability on the part of the ivnrruntor, and the contract is void uniess it is strictly and _literai- ly performed, while a guaranty is a promise, entirely collateral to the original contract, and not imposing any primary liability on the guar- antor, but binding him to be answerable for the faiiure or default of another. Masons‘ Union L. Ins. A4s5:';n v. Brockmnn, 20 Ind. App. 206, E. .

—Absolnte 5 ty. An unconditional promise of payment or performance on the defauit of the principal. Mast v. Lehman. 100 Ky. 466. 38 S. W. 1056: Beardsley v. Hnwcs, 71 Conn. 39. 40 Atl. 10-13: Farmers‘ Rani; v. Tntnall, 7 Houst. (Del.) 237, 31 At]. 879; Es- herg-Bnchman Tobacco Co. v. Heid (D. C.) 62 Fed. 962-—Cul1nte1-5.1 guaranty. A contrnct by which the guarantor undertakes. In case the principal fails to do what he has ' ’ _ undertaken to do, to pay damages for such fail- ure: distinguished from an engagement of suretyship In this respect. that a surety undertakes to do the very thing which the principal has promised to do. in case the latter defaults. Wond_v v. Haworth. 2-} Ind. A p. 63-l, 57 N. E. ‘272: Nading v. McGrc-gnr. 1‘..1 Ind. 470. 23 N. E. 283. 0 L. R. A. (L i.—Cond.itiona.l guar- anty. One which depends upon some extran ous event. beyond the mere default of the pricnipal, and generally upon notice of the guaranty, notice of the principal's default, and reasonable diligence in exhausting proper remedies against the principal. Yager v. Title Co.. 112 Ky. ' , G6 S. W. 1027 : Tobacco Co. v. Hcid (D. .l 62 Fed. 932; Beardsley v. Hawcs, 71 Conn. 39, 40 Atl. 10-13.—Cantin guaranty. One relating to a future liability of the principal. under successive transuctions, which either continue his liability or from time to Lime renew it after it has been satisfied. Sewing Mach. Co. v. Courtney. 141 Cal. 674, 75 Pac. 2376; Buck v. Burk. 15 N. Y. 340: Bank v. Dnike (Iowa) 79 N. W. 121.—Speci.s1 guarnnty. A guaranty which is available only to the particular person to whom it Is oifered or addressed; as distinguished from a general guaranty, which will operate in favor of any person who may accept it. Ev-arson v. Gere. 40 Hun (N. Y.) 250: Tidioute Sav. Bank v. Libbey. 101 “'is. 193. 77 N. W. 182, 70 Am. St. Rep. 907; Evansville Nat. Bank v. Kauffmunn. 93 N. Y. 273. 45 Am. Rep. 20-1.-Guarnntied Itoek. See Srocx. Guaranty company. A corporation authorized to transact the business of entering into contracts of guaranty and suretyship; as, one which, for fixed premiums. becomes surety on judicial bonds. fidelity bonds, and the like. See Eldtus L. Ins. Co. v. Couiier, 74 S. “L 1050, 25 K5‘. Law Rep. 193.—Gnnrnnty insurance. See INSURANCE.

GUARDAGE. A state of wardshlp.

GUARDIAN. A guardian is a person lawfully invested with the power, and charged with the duty, of taking care of the person and managing the property and rights of another person, who, for some pecuiiarity of status, or defect of age, understanding, or self-control. in considered icnapable of administering his own aifairs. Buss v. Cook, 4 Port. (Als.) 392; Sparhawk v. Allen, 21 N. H. 27: Burger v. Frnlies, 67 Iollyll, 460, 23 N. Vi’. 746.

A guardian is a person appointed to take



care of the person or property of another. Civ. Code Cal. § 230.

One who legally has the care and management of the person, or the estfite, or both, of a chiJd during its minority. Reeve, Dom. Rel. 311.

This term might be appropriately used to designate the person charged with the care and control of idiots, iunntics, habitual drunliards. spendthrifts, and the like; but such person is, under many of the statutory systems authorizing the appointment. styled “committee," and in common usage the name “guardian” is applied only to one having the care and management of a minor.

The name “cur:itor" is given Ln some of the states to a person having the confroi of ii miner's estate, without that of his person; and this is also the usage of the civil law.

I“ "‘ A ‘ ‘ . y _f.'l.i‘lli.llnI| is ‘one appointed by the deed or last will of the child‘s father; while a guardian by election is one chosen by the infant himself in a case where he would otherwise be without one. A general guardian is one who has the general care and controi of the person and estate of his ward: while a special guardign is one who has special or limited powers and duties with respect to his word. 9. g.. a gunrdi.-in who has the custody of the estate but not of the person, or vice versa. or a guardian ad litem. A domestic guardian is one appointed at the place where the usrd is legally domiciled; while a foreign guardian derives his authority from appninrruent by the courts of another state, and gene:-.ill_v has char;-:9 only of such property as may he Int‘-'1I"'l uirhin the jurisdiction of the power appointing him. A guardian ad litem is a guardian an i-uiieil by a court of justice to prosecute or defend for an infant in any suit to which he m.:i_v be :1 party. 2 Stepb. Comm. 342. Most commonly appointed for infant defmi.-lam ; infant plaintiffs genemlly suing by mart fneml. This kind of guard- ian has no right to interfere vsith die inf'int’s person or property. 2 Steph. Comm. 313: Richter v. Leiby. 107 Wis. 404, 8'! N. YV. 694. A git-ardiun, by appnintmen-i of cawri is the most important species of guardian in modern low. having custody of the infant until the attainment of full age. It has in En,-zrhnd in A man ner siiperseiled the guardian in snarige, and in the United States the guardian by nature also. The appointment is made by a court of chacnery, or probate or orphans’ court. 2 Stenh. Comm. 341: 2 Kent. Comm. E6. A giuirvlinn by nature is the father, and. on his death, the mother, of a child. 1 Bl. Comm. 461: 2 Kcnt. Comm. 219. This guardianship extends only to the custody of the person of the child to the age of twent_v-one years. Sometimes called "nnturul guardian." but this is l':1tl'Ivr a popu- lar than a technical mode of expression. 2 Steph. Comm. 337; Kline v. Beebe. 6 Conn. 500; Mniirn v. Ilitchie. 16 Fed. Cas. 1171. A guarrlian by statute is a glI!ll'(ll“iD "imiointetl for a child by the deed or last will of the father, and who has the custody both of his person and estate until the attainment of full age. This kind of guardianship is founded on the statute of 12 Car. 11. c 24, and has been pretty extensivnly adopted in this country. 1 Bl. Comm. 462; 2 Steph. Comm. 339. 340: 2 Kent, Comm. 224-226; Huson v. Green, G . 722, 16 B. E. 255. A guardian [or nurture is the father. or. at his dccease, the mother, of a child. ’i‘his kind of guardianship extends only to the person, and determines when the infant arrives at the age of fourteen. 2 Kent, Comm. ‘Z21; 1 Bl. Comm. 61; 2 Stcph. Comm. 332?; Mauro v. Ritchie 16 Fed. Cns. 117] : Art.huis' Appeal, 1 Grant Cos. (I‘s.) so Guardian in cliivzzlry