GRATIS. Without reward or consideration.
2. When a bailee undertakes to perform some act or work gratis, he is
answerable for his gross negligence, if any loss should be sustained in
consequence of it; but a distinction exists between non-feasance and
misfeasance; between a total omission to do an act which one gratuitously
promises to do, and a culpable negligence in the execution of it; in the latter
case he is responsible, while in the former he would not, in general, be bound
to perform his contract. 4 Johns. R. 84; 5 T. 143; 2 Ld. Raym. 913.
GRATIS DICTUM. Assaying not required; a statement voluntarily made
GRATUITOUS CONTRACT, civ. law. One, the object of which is for the
benefit of the person with whom it is made, without any profit, received or
promised, as a consideration for it as, for example, a gift. 1 Bouv. Inst. n.
GRAVAMEN. The grievance complained of; the substantial cause, of the
action. See Greenl. Ev. §66.
GRAVE. A place where a dead body is interred.
2. The violation of the grave, by taking up the dead body, or stealing the
coffin or grave clothes, is a misdemeanor at common law. 1 Russ. on. Cr. 414. A
singular case, illustrative of this subject, occurred in Louisiana. A son, who
inherited a large estate from his mother, buried her with all her jewels, worth
$2000; he then made a sale of all he inherited from his mother, for $30,000.
After this, a thief broke the grave and stole the jewels, which, after his
conviction, were left with the clerk of the court, to be delivered to the owner.
The son claimed them, and so did the purchaser of the inheritance; it was held
that the jewels, although buried with the mother, belonged to the son, and, that
they passed to the purchaser by a sale of the whole inheritance. 6 Robins. L. R.
488. See Dead Body.
3. In New York, by statutory enactment, it is provided, that every person who
shall open a grave, or other place of interment, with intent, 1. To remove the
dead body of any human being, for the purpose of selling the same, or for the
purpose of dissection; or, 2. To steal the coffin, or any part thereof, or the
vestments or other articles interred with any dead body, shall, upon conviction,
be punished by imprisonment, in a state prison, not exceeding two years, or in a
county gaol, not exceeding six months, or by fine not, exceeding two hundred and
fifty dollars, or by both such fine and imprisonment. Rev. Stat. part 4, tit. 5,
art. 3, §15.
GREAT CATTLE. By this, term, in the English law, is, meant all manner
of beasts except sheep and yearlings. 2 Rolle's Rep. 173.
GREAT CHARTER. The name of the charter granted by the English King
John, securing to the English people their principal liberties; magna charta.
GREAT LAW. The name of an act of the legislature of Pennsylvania,
passed at Chester, immediately after the arrival of William Penn, December 7th,
1682. Serg. Land Laws of Penn. 24, 230.
GREE, obsolete. It signified satisfaction; as, to make gree to the
parties, is, to agree with, or satisfy them for, an offence done.
GREEN WAX, Eng. law. The name of the estreats of fines, issues, and
amerce ments in the exchequer, delivered to the sheriff under the seal of that
court, which is made with green wax.
GROS BOIS, or GROSSE BOIS. Such wood as, by the common law or custom,
is reputed timber. 2 hist. 642.
GROSS. Absolute; entire, not depending on another. Vide Common.
GROSS ADVENTURE. By this term the French lay writers signify a
maritime loan, or bottomry. (q, v.) It is so called because the lender exposes
his money to the perils of the sea; and contributes to the gross or general
average. Poth. h. t.; Pard. Dr. Com . h. t.
GROSS AVERAGE, mar. law. That kind of average which falls on the ship,
cargo, and freight, and. is distinguished from particular average. See
GROSS NEGLIGENCE. Lata culpa, or, as the Roman lawyers most accurately
call it) dolo proxima, is, in practice, considered as equivalent to dolus or
fraud itself, and consists, according to the best interpreters, in the omission
of that care which even inattentive and thoughtless men never fail to take of
their own property. Jones on Bailments, 20. It must not be confounded, however,
with fraud, for it may exist consistently with good faith and honesty of
intention, according to common law authorities.
GROSS WEIGHT. The total weight of goods or merchandise, with the
chests, bags, and the like, from which. are to be deducted tare and tret.
GROUND RENT, estates. In Pennsylvania, this term is used to signify a
perpetual rent issuing out of some real estate. This rent is redeemable where
there is a covenant in the deed that, before the expiration of a period therein
named, it may be redeemed by the payment of a certain sum of money; or it is
irredeemable, when there is no such agreement; and, in the latter case, it
cannot be redeemed without the consent of both parties. See 1 Whart. R. 837; 4
Watts, R. 98; Cro. Jac. 510; 6 Halst. 262; 7 Wend. 463; 7 Pet. 596; 2 Bouv.
Inst. n. 1659, and note, and Emphyteosis.
GROUNDAGE, mar. law. The consideration paid for standing a ship in a
port. Jacobs, Dict. h. t., Vide Demurrage.
GUARANTEE, contracts. He lo whom a guaranty is made.
2. The guarantee is entitled to receive payment, in the first place, from the
debtor, and, secondly, from the guarantor. He must be careful not to give time
beyond that stipulated in the original agreement, to the debtor, without the
consent of the guarantor; the guarantee should, at the instance of the
guarantor, bring an action against the principal for the recovery of the debt. 2
Johns. Oh. R. 554; 17 Johns. R. 384; 8 Serg. & Rawle, 116; 10 Serg. &
Rawle, 33; 2 Bro. C. C. 579, 582; 2 Ves. jr. 542. But the mere omission of the
guarantee to sue the principal debtor will not, in general, discharge the
guarantor. 8 Serg. & Rawle, 112; 3 Yeates, R. 157; 6 Binn. R. 292, 300.
GUARANTOR, contracts. He who makes a guaranty.
2. The guarantor is bound to fulfil the engagement he has entered into,
provided the principal debtor does not. He is bound only to the extent that the
debtor is, and any payment made by the latter, or release of him by the
creditor, will operate as a release of the guarantor; 3 Penna. R. 19; or even if
the guarantee should give time to the debtor beyond that contained in the
agreement, or substitute a new agreement, or do any other act by which the
guarantor's situation would be worse, the obligation of the latter would be
discharged. Smith on Mer. Law, 285.
3. A guarantor differs from a surety in this, that the former cannot be sued
until a failure on the part of the principal, when sued; while the latter may be
sued at the same time with the principal. 10 Watts, 258.
GUARANTY, contracts. A promise made upon a good consideration, to
answer for the payment of some debt, or the performance of some duty, in case of
the failure of another person, who is, in the first instance, liable to such
payment or performance. 1 Miles' Rep. 277.
2. The English statute of frauds, 29 Car. II. c. 3, which, with modification,
has been adopted in most of the states; 3 Kent's Com. 86 requires, that "upon
any special promise to answer for the debt, default, or miscarriage of another
person, the agreement, Or some memorandum, or note thereof, must be in writing,
and signed by the party to be charged therewith, or some other thereunto by him
lawfully authorized." This clause of the statute is not in force in
Pennsylvania. To render this statute valid, under the statute, its form must be
in writing; it must be made upon a sufficient consideration; and it must be to
fulfil the engagement of another.
3. - 1. The agreement must be in writing, and signed by the party to be
bound, or some one authorized by him. It should substantially contain the names
of the party promising, and of the person on whose behalf the promise is made;
the promise itself, and the consideration for it.
4. - 2. The word agreement in the statute includes the consideration for the
promise, as well as the promise itself; if, therefore, the guaranty be for a
subsisting, debt, or engagement of another person, not only the engagement, but
the consideration for it, must appear in the writing. 5 East, R. 10. This has
been the construction which has been given in Eugland, and which has been
followed in New York and South Carolina, though it has been rejected in several
other states. 3 John. R. 210; 8 John. R. 29; 2 Nott & McCord, 372, note; 4
Greenl. R. 180, 387; 6 Conn..R. 81; 17 Mass. R. 122. The decisions have all
turned upon the force of the word agreement; and where by statute the word
promise has been introduced, by requiring the promise or agreement to be in
writing, as in Virginia, the construction has not been so strict. 5 Cranch's R.
5. - 3. The guaranty must be to answer for the debt or default of another.
The term debt implies, that the liability of the principal debtor had been
previously incurred; but a default may arise upon an executory contract, and a
promise to pay for goods to be furnished to another, is a collateral promise to
pay on the other's default, provided the credit was given, in the first
instance, solely to the other. It is a general rule, that when a promise is made
by a third person, previous to the sale of goods, or other credit given, or
other liability incurred, it conies within the statute, when it is conditional
upon the default of another, who is solely liable in the first instance,
otherwise not; the only inquiry to ascertain this, is, to whom was it agreed,
that the vendor or creditor should look in. the first instance ? Many nice
distinctions have been made on this subject. 1st. When a party actually
purchases goods himself, which are to be delivered to a third person, for, his
sole use, and the latter was not to be responsible, this is not a case of
guaranty, because the person to whom the goods were furnished, never was liable.
8 T. R. 80. 2d. Where a person buys goods, or incurs any other liability,
jointly with another, but for the use of that other, and this fact is known to
the creditor, the guaranty must be in writing. 8 John. R. 89. 3d. A person may
make himself liable, in the third place, by adding his credit to that of
another, but conditionally only, in case of the other's default. This species of
promise comes immediately within the meaning of the statute, and in the cases is
sometimes termed a collateral promise.
6. Guaranties are either special or for a particular transaction, or they are
continuing guaranties; that is, they are to be valid for other transactions,
though not particularly mentioned. 2 How. U. S. 426; 1 Metc. 24; 7 Pet. 113; 12
East, 227; 6 M. & W. 612; 6 Sc. N. S. 549; 2 Campb. 413; 3 Campb. 220,; 3 M.
& P. 573; S, C. 6 Bing. 244 2 M. & Sc. 768; S. C. 9 Bing. 618 3 B. &
Ald. 593; 1 C. & M. 48; S. C. 1 Tyr. 164. Vide, generally, Fell on
Mercantile Guaranties; Bouv. Inst. Index, h. t.; 3 Kent's Com. 86; Theob. P.
& S. c. 2 & 3; Smith on Mer. Law, c. 10; 3 Saund. 414, n., 5; Wheat.
Dig. 182 14 Wend. 231. The following authorities refer to cases of special
guaranties of notes. 6 Conn. 81; 20 John. 367; 1 Mason 368; 8 Pick. 423; 2 Dev.
& Bat. 470; 14 Wend. 231. Of absolute guaranties. 2 Har. & J. 186; 3
Fairf. 193 1 Mason, 323; 12 Pick. 123. Conditional guaranties. 12 Conn. 438. To
promises to guaranty. 8 Greenl. 234; 16 John. 67.
GUARDIANS, domestic relations. Guardians are divided into, guardians
of the person, in the civil law called tutors; and guardians of the estate, in
the sam law are known by the name of curators. For the distinction between them,
vide article Curatorship; 2 Kent, Com. 186 1 Bouv. Inst. n. 336, et. seq.
2. - 1. A guardian of the person is one who has been lawfully invested with
the care of the person of an infant, whose father is dead.
3. The guardian must be properly appointed he must be capable of serving; he
must be appointed guardian of an infant; and after his appointment he must
perform the duties imposed on him by his office.
4. - 1st. In England, and in some of the states where the English law has
been adopted in this respect, as in Pennsylvania; Rob. Dig. 312, by Stat. 12
Car. If. c. 24; power is given to the father to appoint a testamentary guardian
for his children, whether born or unborn. According to Chancellor Kent, this
statute has been adopted in the state of New York, and probably throughout this
country. 2 Kent, Com. 184. The statute of Connecticut, however, is an exception;
there the father cannot appoint a testamentary guardian. 1 Swift's Dig. 48.
5. All other kinds of guardians, to be hereafter noticed, have been
superseded in practice by guardians appointed by courts having jurisdiction of
such matters. Courts of chancery, orphans courts, and courts of a similar
character having jurisdiction of testamentary matters in the several states,
are, generally, speaking, invested with the power of appointing guardians.
6. - 2d. The person appointed must be capable of performing the duties; an
idiot, therefore, cannot be appointed guardian.
7. - 3d. The person over whom a guardian is appointed, must be an infant; for
after the party has attained his full age, he is entitled to all his rights, if
of sound mind, and, if not, the person appointed to take care of him is called a
committee. (q. v.) No guardian of the person can be appointed over an infant
whose father is alive, unless the latter be non compos mentis, in which case one
may be appointed, as if the latter were dead.
8. - 4th. After his appointment, the guardian of the person is considered as
standing in the place of the father, and of course the relative powers and
duties of guardian and ward correspond, in a great measure, to those of parent
and child; in one prominent matter they are different. The father is entitled to
the services of his child, and is bound to support him; the guardian is not
entitled to the ward's services, and is not bound to maintain him out of his own
9. - 2. A guardian of the estate is one who has been lawfully invested with
the power of taking care and managing the estate of an infant. 1 John. R. 561; 7
John. Ch. R. 150. His appointment is made in the same manner, as that of a
guardian of a person. It is the duty of the guardian to take reasonable and
prudent care of the estate of the ward, and manage it in the most advantageous
manner; and when the guardianship shall expire, to account with the ward for the
administration of the estate.
10. Guardians have also been divided into guardians by nature; guardian's by
nurture; guardians in socage; testamentary guardians; statutory guardians; and
guardians ad litem.
11. - 1. Guardian by nature, is the father, and, on his death, the mother;
this guardianship extends only to the custody of the person; 3 Bro. C. C. 186; 1
John. Ch. R. 3; 3 Pick. R. 213; and continues till the child shall acquire the
age of twenty one years. Co. Litt. 84 a.
12. - 2. Guardian by nurture, occurs only when the ifant is without any other
guardian, and the right belongs exclusively to the parents, first to the father,
and then to the mother. It extends only to the person, and determines, in males
and females, at the age of fourteen. This species of guardianship has become
13. - 3. Guardian in socage, has the custody of the infant's lands as well as
his person. The common law gave this guardianship to the next of blood to the
child to whom the inheritance could not possibly descend. This species of
guardianship has become obsolete, and does not perhaps exist in this country;
for the guardian must be a relation by blood who cannot possibly inherit, and
such a case can rarely exist. 2 Wend. 153: 15 Wend. 631; 6 Paige, 390; 7 Cowen,
36; 5 John.66.
14. - 4. Testamentary guardians; these are appointed under the stat. 12 Car.
II., above mentioned; they supersede the claims of any other guardian, and
extend to the person, an real and personal estate of the child, and continue
till the ward arrives at full age.
15. - 5. Guardians appointed by the courts, by virtue of statutory authority.
The distinction of guardians by nature, and by socage, appear to have become
obsolete, and have been essentially superseded in practice by the appointment of
guardians by courts of chancery, orphans' courts, probate courts, and such other
courts as have jurisdiction to, make such appointments. Testamentary guardians
might, as those of this class, be considered as statutory guardians, inasmuch as
their appointment is authorized by a statute.
16. - 6. Guardian ad litem, is pointed for the infant to defend him in an
action brought against him. Every court, when an infant is sued in a civil
action, has power to appoint a guardian ad litem when he has no guardian, for as
the infant cannot appoint an attorney, he would be without assistance if such a
guardian-were not appointed. The powers and duties of a guardian ad litem are
confined to the defence of the suit. F. N. B. 27; Co. Litt. 88 b, note 16; Id.
135 b, note 1; see generally Bouv. Inst. Index, h. t.; Coop. Inst. 445 to
GUARDIANS OF THE POOR. The name given to officers whose duties are
very similar to those of overseers of the poor, (q. v.) that is, generally to
relieve the distresses of such poor persons who are unable to take care of
GUARDIANSHIP, persons. The power or protective authority given by law,
and imposed on an individual who is free and in the enjoyment of his rights,
over one whose weakness on account of his age, renders him unable to protect
himself. Vide Tutor.
GUBERNATOR, civil law. A pilot or steersman of a ship. 2 Pet. Adm.
Dec. Appx. lxxxiii.
GUEST. A traveller who stays at an inn or tavern-with the consent of
the keeper: Bac. Ab. Inns, C 5; 8 Co. 32. And if, after having taken lodgings at
an inn, he leaves his horse there, and goes elsewhere to lodge, he is still to
be considered a guest. But not if he merely leaves goods for which the landlord
receives no compensation. 1 Salk. 888; 2 Lord Raym. 866; Cro. Jac. 188. The
length of time a man is at an inn makes no difference, whether he stays a day,
or a week, or a month, or longer, so always, that, though not strictly
transiens, he retains his character as a traveller. But if a person comes upon a
special contract to board and sojourn at an inn, he is not in the sense of the
law a guest, but a boarder. Bac. Ab. Inns, C. 5; Story, Bailm. §477.
2. Inkeepers are generally liable for all goods belonging to the guest,
brought within the inn. It is not necessary that the goods should have been in
the special keeping of the innkeeper to make him liable. This rule is founded on
principles of public utility, to which all private considerations ought to
yield. 2 Kent, Com. 459; 1 Hayw. N. C. Rep. 40; 14 John. R. 175; Dig. 4, 9, 1.
Vide 8 Barb. & Ald. 283; 4 Maule & Selw. 306; 1 Holt's N. P. 209; 1
Salk. 387; S. C. Carth. 417; 1 Bell's Com. 469 Dane's Ab. Index, h. t.; Yelv.
67, a; Smith's Leading Cases, 47; 8 Co. 32.
GUIDON DE LA MER, (LE). The name of a treatise on maritime law,
written in Rouen, then Normandy, in 1671, as is supposed. it was received on the
continent of Europe almost as equal in authority to one of the ancient codes of
maritime law. The author of this work is unknown. This tract or treatise is
contained in the Collection de Lois Maritimes," by J. M. Pardessus. vol. 2, p.
371, et seq.
GUILD. A fraternity or company. Guild hall, the place of meeting of
guilds. Beame's, Glanville, 108 (n).
GUILT, crim. law. That quality which renders criminal and liable to
punishment; or it is that disposition to violate the law, which has manifested
itself by some act already done. The opposite of innocence. Vide Rutherf. Inst.
B. 1, c. 18, s. 10.
2. In general everyone is presumed innocent until guilt has been proved; but
in some cases the presumption of guilt overthrows that of innocence; as, for
example, where a party destroys evidence to which the opposite party is
entitled. The spoliation of papers, material to show the neutral character of a
vessel, furnishes strong presumption against the neutrality of the ship. 2
Wheat. 227. Vide Spoliation.
GUILTY. The state or condition of a person who has committed a crime,
misdemeanor or offence.
2. This word implies a malicious intent, and must be applied to something
universally allowed to be a crime. Cowp. 275.
3. In pleading, it is a plea by which a defendant who is charged with a
crime, misdemeanor or tort, admits or confesses it. In criminal proceedings,
when the accused is arraigned, the clerk asks him,: How say you, A B, are you
guilty or not guilty?" His answer, which is given ore tenus, is called his plea;
and when he admits the charge in the indictment he answers or pleads guilty.