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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 without necessity.

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. 709.

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. (q. v.)

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 Average.

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. 151, 2.

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 estate.

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 obsolete.

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 455.

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 themselves.

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.

 
 
 
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