may be accomplished in various ways, he being regarded, especially in England and America, as a “favoured debtor” (per Turner, L.J., in Wheatley v. Bastow, 7 De G. M. & G. 279, 280; per Earl of Selborne, L.C., in In re Sherry—London and County Banking Co. v. Terry, 25 Ch. D., at p. 703; and see Brandt on Suretyship, secs. 79, 80). Thus, fraud subsequent to the execution of the guarantee (as where, for example, the creditor connives at the principal debtor’s default) will certainly discharge the surety. Again, a material alteration made by the creditor in the instrument of guarantee after its execution may also have this effect. The most prolific ground of discharge, however, is usually traceable to causes originating in the creditor’s laches or conduct, the governing principle being that if the creditor violates any rights which the surety possessed when he entered into the suretyship, even though the damage be nominal only, the guarantee cannot be enforced. On this subject it suffices to state that the surety’s discharge may be accomplished (1) by a variation of the terms of the contract between the creditor and the principal debtor, or of that subsisting between the creditor and the surety (see Rickaby v. Lewis, 22 T.L.R. 130); (2) by the creditor taking a new security from the principal debtor in lieu of the original one; (3) by the creditor discharging the principal debtor from liability; (4) by the creditor binding himself to give time to the principal debtor for payment of the guaranteed debt; or (5) by loss of securities received by the creditor in respect of the guaranteed debt.
In this connexion it may be stated in general terms that whatever extinguishes the principal obligation necessarily determines that of the surety (which is accessory thereto), not only in England but elsewhere also (Codes Civil, Fr. and Bel. 2034, 2038; Spain, 1847; Port. 848; Lower Canada, 1956; 1960; Egypt [mixed suits], 622, ibid. [native tribunals], 509; Indian Contract Act 1872, sec. 134), and that, by most of the codes civil now in force, the surety is discharged by laches or conduct of the creditor inconsistent with the surety’s rights (see Fr. and Bel. 2037; Spain, 1852; Port. 853; Germany, 776; Italy, 1928; Egypt [mixed suits], 623), though it may be mentioned that the rule prevailing in England, Scotland, America and India which releases the surety from liability where the creditor, by binding contract with the principal, extends without the surety’s consent the time for fulfilling the principal obligation, while recognized by two existing codes civil (Spain, 1851; Port. 852), is rejected by the majority of them (Fr. and Bel. 2039; Holland, 1887; Italy, 1930; Lower Canada, 1961; Egypt [mixed suits], 613; ib. [native tribunals], 503); (and see Morice, English and Dutch Law, p. 96; van der Linden, Institutes of Holland, pp. 120-121). A revocation of the contract of suretyship by act of the parties, or in certain cases by the death of the surety, may also operate to discharge the surety. The death of a surety does not per se determine the guarantee, but, save where from its nature the guarantee is irrevocable by the surety himself, it can be revoked by express notice after his death, or, it would appear, by the creditor becoming affected with constructive notice thereof; except where, under the testator’s will, the executor has the option of continuing the guarantee, in which case the executor should, it seems, specifically withdraw the guarantee in order to determine it. Where one of a number of joint and several sureties dies, the future liability of the survivors under the guarantee continues, at all events until it has been determined by express notice. Moreover, when three persons joined in a guarantee to a bank, and their liability thereunder was not expressed to be several, it was held that the death of one surety did not determine the liability of the survivors. In such a case, however, the estate of the deceased surety would be relieved from liability.
The Statutes of Limitation bar the right of action on guarantees under seal after twenty years, and on other guarantees after six years, from the date when the creditor might have sued the surety.
Authorities.—De Colyar, Law of Guarantees and of Principal and Surety (3rd ed., 1897); American edition, by J. A. Morgan (1875); Throop, Validity of Verbal Agreements; Fell, Guarantees (2nd ed.); Theobald, Law of Principal and Surety; Brandt, Law of Suretyships and Guarantee; article by de Colyar in Journal of Comparative Legislation (1905), on “Suretyship from the Standpoint of Comparative Jurisprudence.” (H. A. de C.)
GUARATINGUETÁ, a city of Brazil In the eastern part of
the state of São Paulo, 124 m. N.E. of the city of São Paulo.
Pop. (1890) of the municipality, which includes a large rural
district and the villages of Apparecida and Roseira, 30,690.
The city, which was founded in 1651, stands on a fertile plain
3 m. from the Parahyba river, and is the commercial centre of
one of the oldest agricultural districts of the state. The district
produces large quantities of coffee, and some sugar, Indian corn
and beans. Cattle and pigs are raised. The city dwellings are
for the most part constructed of rough wooden frames covered
with mud, called taipa by the natives, and roofed with curved
tiles. The São Paulo branch of the Brazilian Central railway
passes through the city, by which it is connected with Rio de
Janeiro on one side and São Paulo and Santos on the other.
GUARDA, an episcopal city and the capital of an administrative
district bearing the same name, and formerly in the province
of Beira, Portugal; on the Guarda-Abrantes and Lisbon-Villar
Formoso railways. Pop. (1900) 6124. Guarda is situated
3370 ft. above sea-level, at the north-eastern extremity of the
Serra da Estrella, overlooking the fertile valley of the river Côa.
It is surrounded by ancient walls, and contains a ruined
castle, a fine 16th-century cathedral and a sanatorium for
consumptives. Its industries comprise the manufacture of
coarse cloth and the sale of grain, wine and live stock. In 1199
Guarda was founded, on the site of the Roman Lencia Oppidana,
by Sancho I. of Portugal, who intended it, as its name implies,
to be a “guard” against Moorish invasion. The administrative
district of Guarda coincides with north-eastern Beira; pop.
(1900), 261,630; area, 1065 sq. m.
GUARDI, FRANCESCO (1712–1793), Venetian painter, was
a pupil of Canaletto, and followed his style so closely that his
pictures are very frequently attributed to his more celebrated
master. Nevertheless, the diversity, when once perceived, is
sufficiently marked—Canaletto being more firm, solid, distinct,
well-grounded, and on the whole the higher master, while
Guardi is noticeable for spirited touch, sparkling colour and
picturesquely sketched figures—in these respects being fully
equal to Canaletto. Guardi sometimes coloured Canaletto’s
designs. He had extraordinary facility, three or four days being
enough for producing an entire work. The number of his
performances is large in proportion to this facility and to the
love of gain which characterized him. Many of his works are to
be found in England and seven in the Louvre.
GUARDIAN, one who guards or defends another, a protector.
The O. Fr. guarden, garden, mod. gardien, from guarder, garder,
is of Teutonic origin, from the base war-, to protect, cf. O.H. Ger.
warten, and Eng. “ward”; thus “guardian” and “warden”
are etymologically identical, as are “guard” and “ward”;
cf. the use of the correlatives “guardian” and “ward,” i.e. a
minor, or person incapable of managing his affairs, under the
protection or in the custody of a guardian. For the position
of guardians of the poor see Poor Law, and for the legal relations
between a guardian and his ward see Infant, Marriage and
Roman Law.
GUARDS, and HOUSEHOLD TROOPS. The word guard is
an adaptation of the Fr. guarde, mod. garde, O. Ger. ward;
see Guardian. The practice of maintaining bodyguards is of
great antiquity, and may indeed be considered the beginning of
organized armies. Thus there is often no clear distinction
between the inner ring of personal defenders and the select corps
of trained combatants who are at the chief’s entire disposal.
Famous examples of corps that fell under one or both these
headings are the “Immortals” of Xerxes, the Mamelukes,
Janissaries, the Huscarles of the Anglo-Saxon kings, and the
Russian Strelitz (Stryeltsi). In modern times the distinction
of function is better marked, and the fighting men who are
more intimately connected with the sovereign than the bulk of
the army can be classified as to duties into “Household Troops,”
