Legal Term Dictionary

In mining law. A contract between two parties by which one undertakes to furnish the necessary provisions, tools, and other supplies, and the other to prospect for and locate mineral lands and stake out mining claims thereon, the Interest in the property thus acquired inuring to the benefit of both More...

In mining law. A contract between two parties by which one undertakes to furnish the necessary provisions, tools, and other supplies, and the other to prospect for and locate mineral lands and stake out mining claims thereon, the Interest in the property thus acquired inuring to the benefit of both parties, either equally or in such proportions as their agreement may fix. Such contracts create a qualified or special partnership.. See Berry v. Wood-burn, 107 Cal. 512, 40 Pac. 804; Hartney v. Gosling, 10 Wyo. 346, 68 Pac 1118, 98 Am. St. Rep. 1005; Meylette v. Brennan, 20 Colo. 242, 88 Pac. 75. Less...

In old European law. A pledge. Spelman; Calvin. A custom. Spelman. Spelled also "wadla."

In old European law. A pledge. Spelman; Calvin. A custom. Spelman. Spelled also "wadla." Less...

He to whom a guaranty Is made. This word is also used, as a noun, to denote the contract of guaranty or the obligation of a guarantor, and, as a verb, to denote the action of assuming the responsibilities of a guarantor. But on the general principle of legal orthography,-that More...

He to whom a guaranty Is made. This word is also used, as a noun, to denote the contract of guaranty or the obligation of a guarantor, and, as a verb, to denote the action of assuming the responsibilities of a guarantor. But on the general principle of legal orthography,-that the title of the person to whom the action passes over should end in "ee," as "donee," "grantee," "payee," "bailee," "drawee," etc., -it seems better to use this word only as the correlative of "guarantor," and to spell the verb, and also the name of the contract, "guaranty." Less...

In Spanish law. A written authorization to a court to enforce the performance of an agreement in the same manner as If it had been decreed upon regular legal proceedings.

In Spanish law. A written authorization to a court to enforce the performance of an agreement in the same manner as If it had been decreed upon regular legal proceedings. Less...

He who makes a guaranty.

He who makes a guaranty. Less...

v. To undertake collaterally to answer for the payment of another's debt or the performance of another's duty, liability, or obligation; to assume the responsibility of a guarantor; to warrant. See GUARANTY.

v. To undertake collaterally to answer for the payment of another's debt or the performance of another's duty, liability, or obligation; to assume the responsibility of a guarantor; to warrant. See GUARANTY. Less...

n. A promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who, In the first instance, is liable to such payment or performance. Gallagher v. Nichols, 60 N. Y. 444; Andrews v. Pope, 126 N. C. More...

n. A promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who, In the first instance, is liable to such payment or performance. Gallagher v. Nichols, 60 N. Y. 444; Andrews v. Pope, 126 N. C. 472, 35 S. E. 817; Deming v. Bull, 10 Conn. 409; Reigart v. White, 52 Pa. 438. A guaranty is an undertaking by one person to be answerable for the payment of some debt, or the due performance of some contract or duty, by another person, who himself remains liable to pay or perform the same. Story, Prom. Notes, 8 457. A guaranty is a promise to answer for the debt default, or miscarriage of another person. Civil Code Cal. | 2787. A guaranty Is a contract that some particular thing shall be done exactly as it is agreed to be done, whether it is to be done by one person or another, and whether there be a prior or Srincipal contractor or not Redfield v. Haight, 7 Conn. 81. Tbe definition of a "guaranty," by text-writers, is an undertaking hy one person that another shall perform his contract or fulfill his. obligation, or that, if he does not, the guarantor will do it for him. A guarantor of a bill or note is said to be one who engages that the note shall be paid, but is not an indorser or surety. Gridley v. Capen, 72 111. 13. Synonyms. The terms guaranty and suretyship are sometimes used interchangeably; but they should not be confounded. The contract of a surety corresponds with that of a guarantor in many respects; yet important differences exist. The surety is bound with his principal as an original promisor. He is a debtor from the beginning, and must see that the debt is paid, and is held ordinarily to know every default of his principal, and cannot protect himself by the mere indulgence of the creditor, nor by want of notice of the default of the principal, however such indulgence or want of notice may in fact injure him. On the other hand, the contract of a guarantor is his own separate contract It is in the nature of a warranty by him that the thing guarantied to be done by the principal shall be done, not merely an engagement jointly with the principal to do the thing. The original contract of the principal is not his contract, and he is not bound to take notice of its non-performance. Therefore the creditor should give him notice; and it is universally held that, if the guarantor can prove that he has suffered damage by the failure to give such notice, he will be discharged to the extent of the damage thus sustained. It is not so with a surety. Durham v. Manrow, 2 N. Y. 548; Nading v. McGregor, 121 Ind. 465, 23 N. E. 283, 6 L. R. A. 686. Guaranty and uyarranty are derived from the same root, and are in fact etymologically the same word, the "g" of the Norman French being interchangeable with the English "w." They are often used colloquially and in commercial transactions as having tne same signification, as where a piece of machinery or tbe produce of an estate is "guarantied" for a term of years, "warranted" being the more appropriate term in such a case. See Accumulator Co. v. Dubuque St. R" Co., 64 Fed. 70, 12 C. C. A. 37; Martinez v. Earnshaw, 36 Wkly. Notes Cas. (Pa.) 502. A distinction is also sometimes made in commercial usage, by which the term "guaranty" is understood as a collateral warranty (often a conditional one) against some default or event in the future, while the term "warranty" Is taken as meaning an absolute undertaking in prccscnti, against the defect, or for the quantity or quality contemplated by the parties in the subject-matter of the contract turges v. Bank of Circleville, 11 Ohio St. 169, 78 Am. Dec. 296. But in strict legal usage the two terms are widely distinguished in this, that a warranty is an absolute undertaking or liability on the part of the warrantor, and the contract is void unless it is strictly and literally performed, while a guaranty is a promise, entirely collateral to the original contract, and not imposing any primary liability on the guarantor, out binding him to be answerable for the failure or default of another. Masons' Union L. Ins. Ass'n v. Brockman, 20 Ind. App. 206, 50 N. EL 493. -Absolute guaranty. An unconditional promise of payment or performance on the default of the principal. Mast v. Lehman, 100 Ky. 466, 38 S. W. 1056; Beardsley v. Hawes, 71 Conn. 39. 40 Atl. 1043; Farmers' Bank v. Tatnall, 7 Houst. (Del.) 287, 31 Atl. 879; Es-berg-Bachman Tobacco Co. v. Heid (D. C.) 62 Fed. 962.-Collateral guaranty. A contract by which the guarantor undertakes, in case the principal fails to do what he has promised or undertaken to do, to pay damages for such failure ; 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. Woody v. Haworth, 24 Ind. App. 634, 57 N. E. 272; Nading v. McGregor, iff Ind. 470, 23 N. E. 283, 6LR. A. 686.-Conditional guaranty. One which depends upon some extraneous event, beyond the mere default of the principal, 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. 982, 66 S. W. 1027; Tobacco Co. v. Heid (D. C.) 62 Fed. 962; Beardsley v. Hawes, 71 Conn. 39, 40 Atl. 1043.-Continuing guaranty. One relating to a future liability of the principal, under successive transactions, which either continue his liability or from time to time renew it after it has been satisfied. Sewing Mach. Co. v. Courtney, 141 Cal. 674, 75 Pac. 296; Buck v. Burk, 18 N. Y. 340; Bank v. Drake (Iowa) 79 N. W. 121.-Special guaranty. A guaranty which is available only to the particular person to whom it is offered or addressed; as distinguished from a general guaranty, which will operate in favor of any person who may accept it. Everson v. Gere, 40 Hun (N. Y.) 2o0; Tidioute Sav. Bank v. Lib-bey, 101 Wis. 193, 77 N. W. 182, 70 Am. St Rep. 907; Evansville Nat Bank v. Kauffmann, 93 N. Y. 273, 45 Am. Rep. 204.-Guarantied stock. See STOCK.-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 yEtna L. Ins. Co. v. Coulter, 74 S. W. 1050, 25 Ky. Law Rep. 193.-Guaranty insurance. See INSURANCE. Less...

A state of wardship.

A state of wardship. Less...

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 peculiarity of 8 tat us, or defect of age, understanding, or self-control, is considered incapable of administering More...

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 peculiarity of 8 tat us, or defect of age, understanding, or self-control, is considered incapable of administering his own affairs. Bass v. Cook, 4 Port. (Ala.) 392; Sparhawk v. Allen, 21 N. H. 27; Burger v. Frakes, 67 Iowa, 460, 23 N. W, 746. A guardian is a person appointed to take care of the person or property of another. Civ. Code Cal. | 236. One who legally has the care and management of the person, or the estate, or both, of a child during its minority. Reeve, Dom. Rei. 311. This term might be appropriately used to designate the person charged with the care and control of idiots, lunatics, habitual drunkards, spendthrifts, and the like; but such person is, under many of the statutory systems authorising 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 "curator" is given in some of the states to a person having the control of a minor's estate, without that of his person; and this is also the usage of the civil law. Classification. A testamentary guardian 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 control of the person and estate of his ward: while a special guardian is one who has special or limited powers and duties with respect to his ward, e. a., a guardian who has tbe custody of the estate out not of the person, or vice versa, or a guardian ad litem. A domestic guardian Is one appointed at the place where the ward Is legally domiciled; while a foreign guardian derives his authority from appointment by the courts of another state, and generally has charge only of such property as may be located within the jurisdiction of the power appointing him. A guardian ad litem is a guardian appointed by a court of justice to prosecute or defend for an infant in any suit to which he may be a party. 2 Steph. Comm. 342. Most commonly appointed for infant defendants; infant plaintiffs generally suing by next friend. This kind of guardian has no right to interfere with the infant's person or property. 2 Steph. Comm. 843; Richter v. Leiby, 107 Wis. 404, 83 N. W. 694, A guardian by appointment of oourt is the most important species of guardian in modern law, having custody of the infant until the attainment of full age. It has in England in a man ner superseded the guardian in socage, and hi the United States the guardian by nature also. The appointment is made by a court of chancery, or probate or orphans' court 2 Steoh. Comm. 341; 2 Kent, Comm. 226. A guardian by nature is the father, and, on his death, the mother, of a child. 1 Bl. Comm. 461; 2 Kent, Comm. 219. This guardianship extends only to the custody of the person of the child to tbe age of twenty-one years. Sometimes called "natural guardian," but this Is rather a popular than a technical mode of expression. 2 Steph. Comm. 337; Kline v. Beebe, 6 Conn. 500; Mauro v. Ritchie, 16 Fed. Cas. 1171. A guardian by statute is a guardian appointed 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. II. c. 24, and has. been pretty extensively adopted in this country. 1 Bl. Comm. 462; 2 Steph. Comm. 339, 340 ; 2 Kent. Comm. 224-226; Huson v. Green, 88 Ga. 722, 16 SL E. 255. A guardian for nurture is the father, or, at his decease, the mother, of a child. This kind of guardianship extends only to the person, and determines when tbe infant arrives at the age of fourteen. 2 Kent, Comm. 221; 1 Bl. Comm. 461* 2 Steph. Comm. 338; Mauro v. Ritchie, 16 Fed. Cas. 1171; Arthurs' Appeal, 1 Grant Cas. (Pa.) 56. Guardian in chivalry. In the tenure by knight's service, in the feudal law, if the heir of the feud was under the age of twenty-one, being a male, or fourteen, being a female, the lord was entitled to the wardship {and marriage) of the heir, and was called the "guardian in chivalry." This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits. 2 Bl. Comm. 67. Guardian in socage. At the common law, this was a species' of guardian who had the custody of lands coming to the infant by descent, as also of the infant's person, until the latter reached the age of fourteen. Such guardian was always "the next of kin to whom the inheritance cannot possibly descend." 1 Bl. Comm. 461; 2 Steph. Comm. 338; Byrne v. Van Hoesen, 5 Johns. (N. Y.) 67; Van Doren v. Everitt, 5 N. J. Law, 462, 8 Am. Dec. 615; Combs v. Jackson, 2 Wend. (N. Y.) 157, 19 Am. Dec. 56& Natural guardian. The father of a child, or the mother if the father be dead. -Guardian de l'eglise. A church-warden.- Guardian de I'estemary. The warden of the stannaries or mines in Cornwall, etc.-Guardian of tne peace. A warden or conservator of the peace.-Guardian of the poor. In English law. A person elected by the ratepayers of a parish to nave the charge and management of the parish work-house or union. See 3 Steph. Oomm. 203, 215.--Guardian of the spiritualities. The person to whom the spiritual jurisdiction of any diocese is committed during the vacancy of the see.-Guardian of the tern-poralities. The person to whose custody a vacant see or abbey was committed by the crown. -Guardian or warden, of the Cinque Ports. A magistrate who has the jurisdiction of the ports or havens which are called the "Cinque Ports," (q. v.) This office was first created in England, in imitation of the Roman policy, to strengthen the sea-coasts against enemies, etc. Less...

The office, duty, or authority of a guardian. Also the relation subsisting between guardian and ward.

The office, duty, or authority of a guardian. Also the relation subsisting between guardian and ward. Less...