SeeA List of Books(with References to Periodicals)on Samoa and Guam(1901; issued by the Library of Congress); L. M. Cox, “The Island of Guam,” inBulletin of the American Geographical Society, vol. 36 (New York, 1904); Gen. Joseph Wheeler,Report on the Island of Guam, June 1900 (War Department, Document No. 123); F. W. Christian,The Caroline Islands(London, 1899); an account of the flora of Guam by W. E. Safford in the publications of the National Herbarium (Smithsonian Institution); and the reports of the naval governor.
SeeA List of Books(with References to Periodicals)on Samoa and Guam(1901; issued by the Library of Congress); L. M. Cox, “The Island of Guam,” inBulletin of the American Geographical Society, vol. 36 (New York, 1904); Gen. Joseph Wheeler,Report on the Island of Guam, June 1900 (War Department, Document No. 123); F. W. Christian,The Caroline Islands(London, 1899); an account of the flora of Guam by W. E. Safford in the publications of the National Herbarium (Smithsonian Institution); and the reports of the naval governor.
GUAN,a word apparently first introduced into the ornithologist’s vocabulary about 1743 by Edwards,1who said that a bird he figured (Nat. Hist. Uncommon Birds, pl. xiii.) was “so called in the West Indies,” and the name has hence been generally applied to all the members of the subfamilyPenelopinae, which are distinguished from the kindred subfamilyCracinaeor curassows by the broad postacetabular area of the pelvis as pointed out by Huxley (Proc. Zool. Society, 1868, p. 297) as well as by their maxilla being wider than it is high, with its culmen depressed, the crown feathered, and the nostrils bare—the last two characters separating thePenelopinaefrom theOreophasinae, which form the third subfamily of theCracidae,2a family belonging to that taxonomer’s divisionPeristeropodesof the orderGallinae.
ThePenelopinaehave been separated into seven genera, of whichPenelopeandOrtalis, containing respectively about sixteen and nineteen species, are the largest, the others numbering from one to three only. Into their minute differences it would be useless to enter: nearly all have the throat bare of feathers, and from that of many of them hangs a wattle; but one form,Chamaepetes, has neither of these features, andStegnolaema, though wattled, has the throat clothed. With few exceptions the guans are confined to the South-American continent; one species ofPenelopeis however found in Mexico (e.g.at Mazatlan),Pipile cumanensisinhabits Trinidad as well as the mainland, while three species ofOrtalisoccur in Mexico or Texas, and one, which is also common to Venezuela, in Tobago. Like curassows, guans are in great measure of arboreal habit. They also readilybecome tame, but all attempts to domesticate them in the full sense of the word have wholly failed, and the cases in which they have even been induced to breed and the young have been reared in confinement are very few. Yet it would seem that guans and curassows will interbreed with poultry (Ibis, 1866, p. 24;Bull. Soc. Imp. d’Acclimatation, 1868, p. 559; 1869, p. 357), and what is more extraordinary is that in Texas the hybrids between the chiacalacca (Ortalis vetula) and the domestic fowl are asserted to be far superior to ordinary game-cocks for fighting purposes.
(A. N.)
1Edwards also gives “quan” as an alternative spelling, and this may be nearer the original form, since we find Dampier in 1676 writing (Voy. ii. pt. 2, p. 66) of what was doubtless an allied if not the same bird as the “quam.” The species represented by Edwards does not seem to have been identified.2See the excellentSynopsisby Sclater and Salvin in theProceedings of the Zoological Societyfor 1870 (pp. 504-544), while further information on the Cracinae was given by Sclater in theTransactionsof the same society (ix. pp. 273-288, pls. xl.-liii.). Some additions have since been made to the knowledge of the family, but none of very great importance.
1Edwards also gives “quan” as an alternative spelling, and this may be nearer the original form, since we find Dampier in 1676 writing (Voy. ii. pt. 2, p. 66) of what was doubtless an allied if not the same bird as the “quam.” The species represented by Edwards does not seem to have been identified.
2See the excellentSynopsisby Sclater and Salvin in theProceedings of the Zoological Societyfor 1870 (pp. 504-544), while further information on the Cracinae was given by Sclater in theTransactionsof the same society (ix. pp. 273-288, pls. xl.-liii.). Some additions have since been made to the knowledge of the family, but none of very great importance.
GUANABACOA(an Indian name meaning “site of the waters”), a town of Cuba, in Havana province, about 6 m. E. of Havana. Pop. (1907) 14,368. Guanabacoa is served by railway to Havana, with which it is connected by the Regla ferry across the bay. It is picturesquely situated amid woods, on high hills which furnish a fine view. There are medicinal springs in the town, and deposits of liquid bitumen in the neighbouring hills. The town is essentially a residence suburb of the capital, and has some rather pretty streets and squares and some old and interesting churches (including Nuestra Señora de la Asuncion, 1714-1721). Just outside the city is the church of Potosi with a famous “wonder-working” shrine and image. An Indian pueblo of the same name existed here before 1555, and a church was established in 1576. Already at the end of the 17th century Guanabacoa was the fashionable summer residence of Havana. It enjoyed its greatest popularity in this respect from the end of the 18th to the middle of the 19th century. It was created avillawith anayuntamiento(city council) in 1743. In 1762 its fort, the Little Morro, on the N. shore near Cojimar (a bathing beach, where the Key West cable now lands), was taken by the English.
GUANACO,sometimes spelt Huanaca, the larger of the two wild representatives in South America of the camel tribe; the other being the vicugña. The guanaco (Lama huanacus), which stands nearly 4 ft. at the shoulder, is an elegant creature, with gracefully curved neck and long slender legs, the hind-pair of the latter bearing two naked patches or callosities. The head and body are covered with long soft hair of a fawn colour above and almost pure white beneath. Guanaco are found throughout the southern half of South America, from Peru in the north to Cape Horn in the south, but occur in greatest abundance in Patagonia. They live in herds usually of from six to thirty, although these occasionally contain several hundreds, while solitary individuals are sometimes met. They are exceedingly timid, and therefore wary and difficult of approach; like many other ruminants, however, their curiosity sometimes overcomes their timidity, so as to bring them within range of the hunter’s rifle. Their cry is peculiar, being something between the belling of a deer and the neigh of a horse. The chief enemies of the guanaco are the Patagonian Indians and the puma, as it forms the principal food of both. Its flesh is palatable although wanting in fat, while its skin forms the chief clothing material of the Patagonians. Guanaco are readily domesticated, and in this state become very bold and will attack man, striking him from behind with both knees. In the wild state they never defend themselves, and if approached from different points, according to the Indian fashion of hunting, get completely bewildered and fall an easy prey. They take readily to the water, and have been observed swimming from one island to another, while they have been seen drinking salt-water. They have a habit of depositing their droppings during successive days on the same spot—a habit appreciated by the Peruvian Indians, who use those deposits for fuel. Guanaco also have favourite localities in which to die, as appears from the great heaps of their bones found in particular spots.
GUANAJAY,a town of western Cuba, in Pinar del Rio province, about 36 m. (by rail) S.W. of Havana. Pop. (1907) 6400. Guanajay is served by the W. branch of the United railways of Havana, of which it is the W. terminus. The town lies among hills, has an excellent climate, and in colonial times was (like Holguín) an acclimatization station for troops fresh from Spain; it now has considerable repute as a health resort. The surrounding country is a fertile sugar and tobacco region. Guanajay has always been important as a distributing point in the commerce of the western end of the island. It was an ancient pueblo, of considerable size and importance as early as the end of the 18th century.
GUANAJUATO,orGuanaxuato, an inland state of Mexico, bounded N. by Zacatecas and San Luis Potosi, E. by Querétaro, S. by Michoacan and W. by Jalisco. Area, 11,370 sq. m. It is one of the most densely populated states of the republic; pop. (1895) 1,047,817; (1900) 1,061,724. The state lies wholly within the limits of the great central plateau of Mexico, and has an average elevation of about 6000 ft. The surface of its northern half is broken by the Sierra Gorda and Sierra de Guanajuato, but its southern half is covered by fertile plains largely devoted to agriculture. It is drained by the Rio Grande de Lerma and its tributaries, which in places flow through deeply eroded valleys. The climate is semi-tropical and healthy, and the rainfall is sufficient to insure good results in agriculture and stock-raising. In the warm valleys sugar-cane is grown, and at higher elevations Indian corn, beans, barley and wheat. The southern plains are largely devoted to stock-raising. Guanajuato has suffered much from the destruction of its forests, but there remain some small areas on the higher elevations of the north. The principal industry of the state is mining, the mineral wealth of the mountain ranges of the north being enormous. Among its mineral products are silver, gold, tin, lead, mercury, copper and opals. Silver has been extracted since the early days of the Spanish conquest, over $800,000,000 having been taken from the mines during the subsequent three and a half centuries. Some of the more productive of these mines, or groups of mines, are the Veta Madre (mother lode), the San Bernabé lode, and the Rayas mines of Guanajuato, and the La Valenciana mine, the output of which is said to have been $226,000,000 between 1766 and 1826. The manufacturing establishments include flour mills, tanneries and manufactories of leather, cotton and woollen mills, distilleries, foundries and potteries. The Mexican Central and the Mexican National railway lines cross the state from N. to S., and the former operates a short branch from Silao to the state capital and another westward from Irapuato to Guadalajara. The capital is Guanajuato, and other important cities and towns are León, or León de las Aldamas; Celaya (pop. 25,565 in 1900), an important railway junction 22 m. by rail W. from Querétaro, and known for its manufactures of broadcloth, saddlery, soap and sweetmeats; Irapuato (18,593 in 1900), a railway junction and commercial centre, 21 m. S. by W. of Guanajuato; Silao (15,355), a railway junction and manufacturing town (woollens and cottons), 14 m. S.W. of Guanajuato; Salamanca (13,583). on the Mexican Central railway and Lerma river, 25 m. S. by E. of Guanajuato, with manufactures of cottons and porcelain; Allende (10,547), a commercial town 30 m. E. by S. of Guanajuato, with mineral springs; Valle de Santiago (12,660). 50 m. W. by S. of Querétaro; Salvatierra (10,393), 60 m. S.E. of Guanajuato; Cortazar (8633); La Luz (8318), in a rich mining district; Pénjamo (8262); Santa Cruz (7239); San Francisco del Rincón (10,904), 39 m. W. of Guanajuato in a rich mining district; and Acambaro (8345), a prosperous town of the plain, 76 m. S.S.E. ofGuanajuato.
GUANAJUATO,orSanta Fé de Guanajuato, a city of Mexico and capital of the above state, 155 m. (direct) N.W. of the Federal capital, on a small tributary of the Rio Grande de Lerma or Santiago. Pop. (1895) 39,404; (1900) 41,486. The city is built in the Cañada de Marfil at the junction of three ravines about 6500 ft. above the sea, and its narrow, tortuous streets rise steeply as they follow the ravines upward to the mining villages clustered about the opening of the mines in the hillsides. Guanajuato is sometimes described as a collection of mining villages; but in addition there is the central city with its crowded winding streets, its substantial old Spanish buildings, its fifty ore-crushing mills and busy factories and its bustling commercial life. Enclosing the city are the steep, barren mountain sides honeycombed with mines. The climate is semi-tropical and is considered healthy. The noteworthy public buildings and institutions are an interesting old Jesuit church with arches of pink stone and delicate carving, eight monasteries, the government palace, a mint dating from 1812, a national college, the fine Teatro Juárez, and the Pantheon, or public cemetery, with catacombs below. The Alhóndiga de Granaditas, originally a public granary, was used as a fort during the War of Independence, and is celebrated as the scene of the first battle (1810) in that long struggle. Among the manufactures are cottons, prints, soaps, chemicals, pottery and silverware, but mining is the principal interest and occupation of the population. The silver mines of the vicinity were long considered the richest in Mexico, the celebrated Veta Madre (mother lode) even being described as the richest in the world; and Guanajuato has the largest reduction works in Mexico. The railway outlet for the city consists of a short branch of the Mexican Central, which joins the trunk line at Silao. Guanajuato was founded in 1554. It attained the dignity of a city in 1741. It was celebrated for its vigorous resistance to the invaders at the time of the Spanish conquest, and was repeatedly sacked during that war.
GUANCHES,GuanchisorGuanchos(native Guanchinet;Guan= person,Chinet= Teneriffe,—“man of Teneriffe,” corrupted, according to Nuñez de la Peña, by Spaniards into Guanchos), the aboriginal inhabitants of the Canary Islands. Strictly the Guanches were the primitive inhabitants of Teneriffe, where they seem to have preserved racial purity to the time of the Spanish conquest, but the name came to be applied to the indigenous populations of all the islands. The Guanches, now extinct as a distinct people, appear, from the study of skulls and bones discovered, to have resembled the Cro-Magnon race of the Quaternary age, and no real doubt is now entertained that they were an offshoot of the great race of Berbers which from the dawn of history has occupied northern Africa from Egypt to the Atlantic. Pliny the Elder, deriving his knowledge from the accounts of Juba, king of Mauretania, states that when visited by the Carthaginians under Hanno the archipelago was found by them to be uninhabited, but that they saw ruins of great buildings. This would suggest that the Guanches were not the first inhabitants, and from the absence of any trace of Mahommedanism among the peoples found in the archipelago by the Spaniards it would seem that this extreme westerly migration of Berbers took place between the time of which Pliny wrote and the conquest of northern Africa by the Arabs. Many of the Guanches fell in resisting the Spaniards, many were sold as slaves, and many conformed to the Roman Catholic faith and married Spaniards.
Such remains as there are of their language, a few expressions and the proper names of ancient chieftains still borne by certain families, connect it with the Berber dialects. In many of the islands signs are engraved on rocks. Domingo Vandewalle, a military governor of Las Palmas, was the first, in 1752, to investigate these; and it is due to the perseverance of D. Aquilino Padran, a priest of Las Palmas, that anything about the inscription on the island Hierro has been brought to light. In 1878 Dr R. Verneau discovered in the ravines of Las Balos some genuine Libyan inscriptions. Without exception the rock inscriptions have proved to be Numidic. In two of the islands (Teneriffe and Gomera) the Guanche type has been retained with more purity than in the others. No inscriptions have been found in these two islands, and therefore it would seem that the true Guanches did not know how to write. In the other islands numerous Semitic traces are found, and in all of them are the rock-signs. From these facts it would seem that the Numidians, travelling from the neighbourhood of Carthage and intermixing with the dominant Semitic race, landed in the Canary Islands, and that it is they who have written the inscriptions at Hierro and Grand Canary.
The political and social institutions of the Guanches varied. In some islands hereditary autocracy prevailed; in others the government was elective. In Teneriffe all the land belonged to the chiefs who leased it to their subjects. In Grand Canary suicide was regarded as honourable, and on a chief inheriting, one of his subjects willingly honoured the occasion by throwing himself over a precipice. In some islands polyandry was practised; in others the natives were monogamous. But everywhere the women appear to have been respected, an insult offered any woman by an armed man being a capital offence. Almost all the Guanches used to wear garments of goat-skins, and others of vegetable fibres, which have been found in the tombs of Grand Canary. They had a taste for ornaments, necklaces of wood, bone and shells, worked in different designs. Beads of baked earth, cylindrical and of all shapes, with smooth or polished surfaces, mostly black and red in colour, were chiefly in use. They painted their bodies; thepintaderas, baked clay objects like seals in shape, have been explained by Dr Verneau as having been used solely for painting the body in various colours. They manufactured rough pottery, mostly without decorations, or ornamented by means of the finger-nail. The Guanches’ weapons were those of the ancient races of south Europe. The polished battle-axe was more used in Grand Canary, while stone and obsidian, roughly cut, were commoner in Teneriffe. They had, besides, the lance, the club, sometimes studded with pebbles, and the javelin, and they seem to have known the shield. They lived in natural or artificial caves in their mountains. In districts where cave-dwellings were impossible, they built small round houses and, according to the Spaniards, they even practised rude fortification. In Palma the old people were at their own wish left to die alone. After bidding their family farewell they were carried to the sepulchral cave, nothing but a bowl of milk being left them. The Guanches embalmed their dead; many mummies have been found in an extreme state of desiccation, each weighing not more than 6 or 7 ℔. Two almost inaccessible caves in a vertical rock by the shore 3 m. from Santa Cruz (Teneriffe) are said still to contain bones. The process of embalming seems to have varied. In Teneriffe and Grand Canary the corpse was simply wrapped up in goat and sheep skins, while in other islands a resinous substance was used to preserve the body, which was then placed in a cave difficult of access, or buried under a tumulus. The work of embalming was reserved for a special class, women for female corpses, men for male. Embalming seems not to have been universal, and bodies were often simply hidden in caves or buried.
Little is known of the religion of the Guanches. They appear to have been a distinctly religious race. There was a general belief in a supreme being, called Acoran, in Grand Canary, Achihuran in Teneriffe, Eraoranhan in Hierro, and Abora in Palma. The women of Hierro worshipped a goddess called Moneiba. According to tradition the male and female gods lived in mountains whence they descended to hear the prayers of the people. In other islands the natives venerated the sun, moon, earth and stars. A belief in an evil spirit was general. The demon of Teneriffe was called Guayota and lived in the peak of Teyde, which was the hell called Echeyde. In times of drought the Guanches drove their flocks to consecrated grounds, where the lambs were separated from their mothers in the belief that their plaintive bleatings would melt the heart of the Great Spirit. During the religious feasts all war and even personal quarrels were stayed.
Bibliography.—S. Berthelot,Antiquités canariennes(Paris, 1839); Baker Webb and S. Berthelot,Histoire naturelle des îlesCanaries(Paris, 1839); Paul Broca,Revue d’anthropologie, iv. (1874); General L. L. C. Faidherbe,Quelque mots sur l’ethnologie de l’archipel canarien(Paris, 1875); Chil y Naranjo,Estudios historicos, climatologicos y Patologicos de las Islas Canarias(Las Palmas, 1876-1889); “De la pluralité des races humaines de l’archipel canarien,”Bull. Soc. Anthrop. Paris, 1878; “Habitations et sépultures des anciens habitants des îles Canaries,”Revue d’anthrop., 1879; R. Verneau, “Sur les Sémites aux îles Canaries,” and “Sur les anciens habitants de la Isleta, Grande Canarie,”Bull. Soc. Anthrop. Paris, 1881;Rapport sur une mission scientifique dans l’archipel canarien(Paris, 1887);Cinq années de séjour aux îles Canaries(Paris, 1891); H. Meyer,Die Insel Tenerife(Leipzig, 1896), “Über die Urbewohner der canarischen Inseln,” inAdolf Bastian Festschrift(Berlin, 1896); F. von Luschan,Anhang über eine Schädelsammlung von den canarischen Inseln; R. Virchow, “Schädel mit Carionecrosis der Sagittalgegend,”Verhandlungen der Berliner Anthrop. Gesellschaft(1896); G. Sergi,The Mediterranean Race(London, 1901);The Guanches of Tenerife ..., by Alonso de Espinosa, translated by Sir Clements Markham, with bibliography (Hakluyt Society, 1907).
Bibliography.—S. Berthelot,Antiquités canariennes(Paris, 1839); Baker Webb and S. Berthelot,Histoire naturelle des îlesCanaries(Paris, 1839); Paul Broca,Revue d’anthropologie, iv. (1874); General L. L. C. Faidherbe,Quelque mots sur l’ethnologie de l’archipel canarien(Paris, 1875); Chil y Naranjo,Estudios historicos, climatologicos y Patologicos de las Islas Canarias(Las Palmas, 1876-1889); “De la pluralité des races humaines de l’archipel canarien,”Bull. Soc. Anthrop. Paris, 1878; “Habitations et sépultures des anciens habitants des îles Canaries,”Revue d’anthrop., 1879; R. Verneau, “Sur les Sémites aux îles Canaries,” and “Sur les anciens habitants de la Isleta, Grande Canarie,”Bull. Soc. Anthrop. Paris, 1881;Rapport sur une mission scientifique dans l’archipel canarien(Paris, 1887);Cinq années de séjour aux îles Canaries(Paris, 1891); H. Meyer,Die Insel Tenerife(Leipzig, 1896), “Über die Urbewohner der canarischen Inseln,” inAdolf Bastian Festschrift(Berlin, 1896); F. von Luschan,Anhang über eine Schädelsammlung von den canarischen Inseln; R. Virchow, “Schädel mit Carionecrosis der Sagittalgegend,”Verhandlungen der Berliner Anthrop. Gesellschaft(1896); G. Sergi,The Mediterranean Race(London, 1901);The Guanches of Tenerife ..., by Alonso de Espinosa, translated by Sir Clements Markham, with bibliography (Hakluyt Society, 1907).
GUANIDINE,CN3H5or HN:C(NH2)2, the amidine of amidocarbonic acid. It occurs in beet juice. It was first prepared in 1861 by A. Strecker, who oxidized guanine with hydrochloric acid and potassium chlorate. It may be obtained synthetically by the action of ammonium iodide on cyanamide, CN·NH2+ NH4I = CN3H5·HI·; by heating ortho-carbonic esters with ammonia to 150° C.; but best by heating ammonium thiocyanate to 180°-190° C., when the thiourea first formed is converted into guanidine thiocyanate, 2CS(NH2)2= HN:C(NH2)2·HCNS + H2S. It is a colourless crystalline solid, readily soluble in water and alcohol; it deliquesces on exposure to air. It has strong basic properties, absorbs carbon dioxide readily, and forms well-defined crystalline salts. Baryta water hydrolyses it to urea. By direct union with glycocoll acid, it yields glycocyamine, NH2·(HN):C·NH·CH2·CO2H, whilst with methyl glycocoll (sarcosine) it forms creatine, NH2·(NH):C·N(CH3)·CH2·CO2H.
Many derivatives of guanidine were obtained by J. Thiele (Ann., 1892, 270, p. 1; 1893, 273, p. 133;Ber., 1893, 26, pp. 2598, 2645). By the action of nitric acid on guanidine in the presence of sulphuric acid, nitroguanidine, HN:C(NH2)·NH·NO2(a substance possessing acid properties) is obtained; from which, by reduction with zinc dust, amidoguanidine, HN:C(NH2)·NH·NH2, is formed. This amidoguanidine decomposes on hydrolysis with the formation of semicarbazide, NH2·CO·NH·NH2, which, in its turn, breaks down into carbon dioxide, ammonia and hydrazine. Amidoguanidine is a body of hydrazine type, for it reduces gold and silver salts and yields a benzylidine derivative. On oxidation with potassium permanganate, it gives azodicarbondiamidine nitrate, NH2·(HN):C·N:N·C:(NH)·NH2·2HNO3, which, when reduced by sulphuretted hydrogen, is converted into the corresponding hydrazodicarbondiamidine, NH2·(HN):C·NH·NH·C:(NH)·NH2. By the action of nitrous acid on a nitric acid solution of amidoguanidine, diazoguanidine nitrate, NH2·(HN):C·NH·N2·NO3, is obtained. This diazo compound is decomposed by caustic alkalis with the formation of cyanamide and hydrazoic acid, CH4N5·NO3= N3H + CN·NH2+ HNO3, whilst acetates and carbonates convert it into amidotetrazotic acid,Amidotetrazotic acid yields addition compounds with amines, and by the further action of nitrous acid yields a very explosive derivative, diazotetrazol, CN6. By fusing guanidine with urea, dicyandiamidine H2N·(HN):C·NH·CO·NH2, is formed.
Many derivatives of guanidine were obtained by J. Thiele (Ann., 1892, 270, p. 1; 1893, 273, p. 133;Ber., 1893, 26, pp. 2598, 2645). By the action of nitric acid on guanidine in the presence of sulphuric acid, nitroguanidine, HN:C(NH2)·NH·NO2(a substance possessing acid properties) is obtained; from which, by reduction with zinc dust, amidoguanidine, HN:C(NH2)·NH·NH2, is formed. This amidoguanidine decomposes on hydrolysis with the formation of semicarbazide, NH2·CO·NH·NH2, which, in its turn, breaks down into carbon dioxide, ammonia and hydrazine. Amidoguanidine is a body of hydrazine type, for it reduces gold and silver salts and yields a benzylidine derivative. On oxidation with potassium permanganate, it gives azodicarbondiamidine nitrate, NH2·(HN):C·N:N·C:(NH)·NH2·2HNO3, which, when reduced by sulphuretted hydrogen, is converted into the corresponding hydrazodicarbondiamidine, NH2·(HN):C·NH·NH·C:(NH)·NH2. By the action of nitrous acid on a nitric acid solution of amidoguanidine, diazoguanidine nitrate, NH2·(HN):C·NH·N2·NO3, is obtained. This diazo compound is decomposed by caustic alkalis with the formation of cyanamide and hydrazoic acid, CH4N5·NO3= N3H + CN·NH2+ HNO3, whilst acetates and carbonates convert it into amidotetrazotic acid,Amidotetrazotic acid yields addition compounds with amines, and by the further action of nitrous acid yields a very explosive derivative, diazotetrazol, CN6. By fusing guanidine with urea, dicyandiamidine H2N·(HN):C·NH·CO·NH2, is formed.
GUANO(a Spanish word from the Peruvianhuanu, dung), the excrement of birds, found as large deposits on certain islands off the coast of Peru, and on others situated in the Southern ocean and off the west coast of Africa. The large proportions of phosphorus in the form of phosphates and of nitrogen as ammonium oxalate and urate renders it a valuable fertilizer. Bat’s guano, composed of the excrement of bats, is found in certain caves in New Zealand and elsewhere; it is similar in composition to Peruvian guano. (SeeManures and Manuring.)
GUANTA,a port on the Caribbean coast of the state of Bermúdez, Venezuela, 12 m. N.E. of Barcelona, with which it is connected by rail. It dates from the completion of the railway to the coal mines of Naricual and Capiricual nearly 12 m. beyond Barcelona, and was created for the shipment of coal. The harbour is horseshoe-shaped, with its entrance, 1998 ft. wide, protected by an island less than 1 m. off the shore. The entrance is easy and safe, and the harbour affords secure anchorage for large vessels, with deep water alongside the iron railway wharf. These advantages have made Guanta the best port on this part of the coast, and the trade of Barcelona and that of a large inland district have been transferred to it. A prominent feature in its trade is the shipment of live cattle. Among its exports are sugar, coffee, cacáo, tobacco and fruit.
GUANTÁNAMO,the easternmost important town of the S. coast of Cuba, in the province of Santiago, about 40 m. E. of Santiago. Pop. (1907) 14,559. It is situated by the Guazo (or Guaso) river, on a little open plain between the mountains. The beautiful, land-locked harbour, 10 m. long from N. to S. and 4 m. wide in places, has an outer and an inner basin. The latter has a very narrow entrance, and 2 to 2.5 fathoms depth of water. From the port of Caimanera to the city of Guantánamo, 13 m. N., there is a railway, and the city has railway connexion with Santiago. Guantánamo is one of the two ports leased by Cuba to the United States for a naval station. It is the shipping-port and centre of a surrounding coffee-, sugar- and lime-growing district. In 1741 an English force under Admiral Edward Vernon and General Thomas Wentworth landed here to attack Santiago. They named the harbour Cumberland bay. After their retreat fortifications were begun. The history of the region practically dates, however, from the end of the 18th century, when it gained prosperity from the settlement of French refugees from Santo Domingo; the town, as such, dates only from 1822. Almost all the old families are of French descent, and French was the language locally most used as late as the last third of the 19th century. In recent years, especially since the Spanish-American War of 1898, the region has greatly changed socially and economically. Guantánamo was once a fashionable summer residence resort for wealthy Cubans.
GUARANA(so called from the Guaranis, an aboriginal American tribe), the plantPaullinia Cupana(orP. sorbilis) of the natural orderSapindaceae, indigenous to the north and west of Brazil. It has a smooth erect stem; large pinnate alternate leaves, composed of 5 oblong-oval leaflets; narrow panicles of short-stalked flowers; and ovoid or pyriform fruit about as large as a grape, and containing usually one seed only, which is shaped like a minute horse-chestnut. What is commonly known as guarana, guarana bread or Brazilian cocoa, is prepared from the seeds as follows. In October and November, at which time they become ripe, the seeds are removed from their capsules and sun-dried, so as to admit of the ready removal by hand of the white aril; they are next ground in a stone mortar or deep dish of hard sandstone; the powder, moistened by the addition of a small quantity of water, or by exposure to the dews, is then made into a paste with a certain proportion of whole or broken seeds, and worked up sometimes into balls, but usually into rolls not unlike German sausages, 5 to 8 in. in length, and 12 to 16 oz. in weight. After drying by artificial or solar heat, the guarana is packed between broad leaves in sacks or baskets. Thus prepared, it is of extreme hardness, and has a brown hue, a bitter astringent taste, and an odour faintly resembling that of roasted coffee. An inferior kind, softer and of a lighter colour, is manufactured by admixture of cocoa or cassava. Rasped or grated into sugar and water, guarana forms a beverage largely consumed in S. America. Its manufacture, originally confined to the Mauhés Indians, has spread into various parts of Brazil.
The properties of guarana as a nervous stimulant and restorative are due to the presence of what was originally described as a new principle and termed guaranine, but is now known to be identical with caffeine or theine. Besides this substance, which is stated to exist in it in the form of tannate, guarana yields on analysis the glucoside saponin, with tannin, starch, gum, three volatile oils, and an acrid green fixed oil (Fournier,Journ. de Pharm.vol. xxxix., 1861, p. 291).
The properties of guarana as a nervous stimulant and restorative are due to the presence of what was originally described as a new principle and termed guaranine, but is now known to be identical with caffeine or theine. Besides this substance, which is stated to exist in it in the form of tannate, guarana yields on analysis the glucoside saponin, with tannin, starch, gum, three volatile oils, and an acrid green fixed oil (Fournier,Journ. de Pharm.vol. xxxix., 1861, p. 291).
GUARANIS, a tribe and stock of South American Indians, having their home in Paraguay, Uruguay and on the Brazilian coast. The Guaranis had developed some civilization before the arrival of the Spaniards, and being a peaceable people quickly submitted. They form to-day the chief element in the populations of Paraguay and Uruguay. Owing to its patronage by the Jesuit missionaries the Guarani language became awidespread medium of communication, and in a corrupted form is still the common language in Paraguay.
GUARANTEE(sometimes spelt “guarantie” or “guaranty”; an O. Fr. form of “warrant,” from the Teutonic word which appears in German aswahren, to defend or make safe and binding), a term more comprehensive and of higher import than either “warrant” or “security,” and designating either some international treaty whereby claims, rights or possessions are secured, or more commonly a mere private transaction, by means of which one person, to obtain some trust, confidence or credit for another, engages to be answerable for him.
In English law, a guarantee is a contract to answer for the payment of some debt, or the performance of some duty, by a third person who isprimarilyliable to such payment or performance. It is acollateralcontract, which does not extinguish the original liability or obligation to which it is accessory, but on the contrary is itself rendered null and void should the latter fail, as without a principal there can be no accessory. The liabilities of a surety are in law dependent upon those of the principal debtor, and when the latter cease the former do so likewise (perCollins, L.J., inStaceyv.Hill, 1901, 1 K.B., at p. 666; seeperWilles, J., inBatesonv.Gosling, 1871, L.R. 7 C.P., at p. 14), except in certain cases where the discharge of the principal debtor is by operation of law (seeIn re Fitzgeorge—ex parte Robson, 1905, 1 K.B. p. 462). If, therefore, persons wrongly suppose that a third person is liable to one of them, and a guarantee is given on that erroneous supposition, it is invalidab initio, by virtue of thelex contractûs, because its foundation (which was that another was taken to be liable) has failed (perWilles, J., inMountstephenv.Lakeman, L.R. 7 Q.B. p. 202). According to various existing codes civil, a suretyship, in respect of an obligation “non-valable,” is null and void save where the invalidity is the result of personal incapacity of the principal debtor (Codes Civil, France and Belgium, 2012; Spain, 1824; Portugal, 822; Italy, 1899; Holland, 1858; Lower Canada, 1932). In some countries, however, the mere personal incapacity of a son under age to borrow suffices to vitiate the guarantee of a loan made to him (Spain, 1824; Portugal, 822, s. 2, 1535, 1536). The Egyptian codes sanction guarantees expressly entered into “in view of debtor’s want of legal capacity” to contract a valid principal obligation (EgyptianCodes, Mixed Suits, 605; Native Tribunals, 496). The Portuguese code (art. 822, s. 1) retains the surety’s liability, in respect of an invalid principal obligation, until the latter has been legally rescinded.
The giver of a guarantee is called “the surety,” or “the guarantor”; the person to whom it is given “the creditor,” or “the guarantee”; while the person whose payment or performance is secured thereby is termed “the principal debtor,” or simply “the principal.” In America, but not apparently elsewhere, there is a recognized distinction between “a surety” and “a guarantor”; the former being usually bound with the principal, at the same time and on the same consideration, while the contract of the latter is his own separate undertaking, in which the principal does not join, and in respect of which he is not to be held liable, until due diligence has been exerted to compel the principal debtor to make good his default. There is no privity of contract between the surety and the principal debtor, for the surety contracts with the creditor, and they do not constitute in law one person, and are not jointly liable to the creditor (perBaron Parke inBainv.Cooper, 1 Dowl. R. (N.S.) 11, 14).
No special phraseology is necessary to the formation of a guarantee; and what really distinguishes such a contract from one of insurance is not any essential difference between the two forms of wordsinsuranceandguarantee, but the substance of the contract entered into by the parties in each particular case (perRomer, L.J., inSeatonv.Heath—Seatonv.Burnand, 1899, 1 Q.B. 782, 792, C.A.;perVaughan Williams, L.J., inIn re Denton’s Estate Licenses Insurance Corporation and Guarantee Fund Ltd.v.Denton, 1904, 2 Ch., at p. 188; and seeDanev.Mortgage Insurance Corporation, 1894, 1 Q.B. 54 C.A.) In this connexion it may be mentioned that the different kinds of suretyships have been classified as follows: (1) Those in which there is an agreement to constitute, for a particular purpose, the relation of principal and surety, to which agreement the creditor thereby secured is a party; (2) those in which there is a similar agreement between the principal and surety only, to which the creditor is a stranger; and (3) those in which, without any such contract of suretyship, there is a primary and a secondary liability of two persons for one and the same debt, the debt being, as between the two, that of one of those persons only, and not equally of both, so that the other, if he should be compelled to pay it, would be entitled to reimbursement from the person by whom (as between the two) it ought to have been paid (perEarl of Selborne, L.C.,in Duncan Fox and Co.v.North and South Wales Bank, 6 App. Cas., at p. 11). According to several codes civil sureties are made divisible into conventional, legal and judicial (Fr. and Bel., 2015, 2040 et seq.; Spain, 1823; Lower Canada, 1930), while the Spanish code further divides them into gratuitous and for valuable consideration (art. 1, 823).
In England the common-law requisites of a guarantee in no way differ from those essential to the formation of any other contract. That is to say, they comprise the mutual assent of two or more parties, competency to contract, and, unless the guarantee be under seal, valuable consideration. An offer to guarantee is not binding until it has been accepted, being revocable till then by the party making it. Unless, however, as sometimes happens, the offer contemplates an express acceptance, one may be implied, and it may be a question for a jury whether an offer of guarantee has in fact been accepted. Where the surety’s assent to a guarantee has been procured by fraud of the person to whom it is given, there is no binding contract. Such fraud may consist of suppression or concealment or misrepresentation. There is some conflict of authorities as to what facts must be spontaneously disclosed to the surety by the creditor, but it may be taken that the rule on the subject is less stringent than that governing insurances upon marine, life and other risks (The North British Insurance Co.v.Lloyd, 10 Exch. 523), though formerly this was denied (Owenv.Homan, 3 Mac. & G. 378, 397). Moreover, even where the contract relied upon is in the form of a policy guaranteeing the solvency of a surety for another’s debt, and is therefore governed by the doctrine ofuberrimafides, only such facts as are really material to the risk undertaken need be spontaneously disclosed (Seatonv.Burnand—Burnandv.Seaton, 1900, A.C. 135). As regards the competency of the parties to enter into a contract of guarantee, this may be affected by insanity or intoxication of the surety, if known to the creditor, or by disability of any kind. The ordinary disabilities are those of infants and married women—now in England greatly mitigated as regards the latter by the Married Women’s Property Acts, 1870 to 1893, which enable a married woman to contract, as afeme sole, to the extent of her separate property. Every guarantee not under seal must according to English law have a consideration to support it, though the least spark of one suffices (perWilmot, J., inPillanv.van Mierop and Hopkins, 3 Burr., at p. 1666;Haighv.Brooks, 10 A. & E. 309;Barrellv.Trussell, 4 Taunt. 117), which, as in other cases, may consist either of some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. In some guarantees the consideration is entire—as where, in consideration of a lease being granted, the surety becomes answerable for the performance of the covenants; in other cases it is fragmentary,i.e.supplied from time to time—as where a guarantee is given to secure the balance of a running account at a banker’s, or a balance of a running account for goods supplied (perLush, L.J., inLloyd’sv.Harper, 16 Ch. Div., at p. 319). In the former case, the moment the lease is granted there is nothing more for the lessor to do, and such a guarantee as that of necessity runs on throughout the duration of the lease and is irrevocable. In the latter case, however, unless the guarantee stipulates to the contrary, the surety may at any time terminate his liability under the guarantee as tofutureadvances, &c. The consideration for a guarantee must not bepastorexecuted, but on the other hand it need not comprise a direct benefit or advantage to either the surety or the creditor, but may solely consist of anything done, or any promise made, for the benefit of the principal debtor. It is more frequentlyexecutorythanconcurrent, taking the form either of forbearance to sue the principal debtor, or of a future advance of money or supply of goods to him.
By the Indian Contract Act 1872, sect. 127, it is provided that the consideration for a guarantee may consist of anything done or any promise made for the benefit of the principal debtor by the creditor. Total failure of the consideration stipulated for by the party giving a guarantee will prevent its being enforced, as will also the existence of an illegal consideration. Though in all countries the mutual assent of two or more parties is essential to the formation of any contract (seee.g.Codes Civil, Fr. and Bel. 1108; Port. 643, 647 et seq.; Spain, 1258, 1261; Italy, 1104; Holl. 1356; Lower Canada, 984), a consideration is not everywhere regarded as a necessary element (see Pothier’sLaw of Obligations, Evans’s edition, vol. ii. p. 19). Thus in Scotland a contract may be binding without a consideration to support it (Stair i. 10. 7).
The statutory requisites of a guarantee are, in England, prescribed by (1) the Statute of Frauds, which, with reference to guarantees, provides that “no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized,” and (2) Lord Tenterden’s Act (9 Geo. IV. c. 14), which by § 6 enacts that “no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money or goods upon” (i.e.“upon credit,” seeperParke, B., inLydev.Barnard, 1 M. & W., at p. 104), “unless such representation or assurance be made in writing signed by the party to be charged therewith.” This latter enactment, which applies to incorporated companies as well as to individual persons (Hirstv.West Riding Union Banking Co., 1901, 2 K.B. 560 C.A.), was rendered necessary by an evasion of the 4th section of the Statute of Frauds, accomplished by treating the special promise to answer for another’s debt, default or miscarriage, when not in writing, as required by that section, as a false and fraudulent representation concerning another’s credit, solvency or honesty, in respect of which damages, as for a tort, were held to be recoverable (Pasleyv.Freeman, 3 T.R. 51). In Scotland, where, it should be stated, a guarantee is called a “cautionary obligation,” similar enactments to those just specified are contained in § 6 of the Mercantile Law Amendment Act (Scotland) 1856, while in the Irish Statute of Frauds (7 Will. III. c. 12) there is a provision (§ 2) identical with that found in the English Statute of Frauds. In India a guarantee may be either oral or written (Indian Contract Act, § 126), while in the Australian colonies, Jamaica and Ceylon it must be in writing. The German code civil requires the surety’s promise to be verified by writing where he has not executed the principal obligation (art. 766), and the Portuguese code renders a guarantee provable by all the modes established by law for the proof of the principal contract (art. 826). According to most codes civil now in force a guarantee like any other contract can usually be made verbally in the presence of witnesses and in certain cases (where for instance considerable sums of money are involved)sous signature privéeor else by judicial or notarial instrument (see Codes Civil, Fr. and Bel. 1341; Spain, 1244; Port. 2506, 2513; Italy, 1341 et seq.; Pothier’sLaw of Obligations, Evans’s ed. i. 257; Burge onSuretyship, p. 19; van der Linden’sInstitutes of Holland, p. 120); the French and Belgian Codes, moreover, provide that suretyship is not to be presumed but must always be expressed (art. 2015).
The Statute of Frauds does not invalidate a verbal guarantee, but renders it unenforceable by action. It may therefore be available in support of a defence to an action, and money paid under it cannot be recovered. An indemnity is not a guarantee within the statute, unless it contemplates the primary liability of a third person. It need not, therefore, be in writing when it is a mere promise to become liable for a debt, whenever the person to whom the promise is made should become liable (Wildesv.Dudlow, L.R. 19 Eq. 198;perVaughan Williams, L.J. inHarburg India-Rubber Co.v.Martin, 1902, 1 K.B. p. 786;Guildv.Conrad, 1894, 2 Q.B. 885 C.A.). Neither does the statute apply to the promise of adel credereagent, which binds him, in consideration of the higher commission he receives, to make no sales on behalf of his principal except to persons who are absolutely solvent, and renders him liable for any loss that may result from the non-fulfilment of his promise. A promise togivea guarantee is, however, within the statute, though not one toprocurea guarantee.
The general principles which determine what are guarantees within the Statute of Frauds, as deduced from a multitude of decided cases, are briefly as follows: (1) the primary liability of a third person must exist or be contemplated as the foundation of the contract (Birkmyrv.Darnell, 1 Sm. L.C. 11th ed. p. 299;Mountstephenv.Lakeman, L.R. 7 Q.B. 196; L.R. 7 H.L. 17); (2) the promise must be made to the creditor; (3) there must be an absence of all liability on the part of the surety independently of his express promise of guarantee; (4) the main object of the transaction between the parties to the guarantee must be the fulfilment of a third party’s obligation (seeHarburg India-rubber Comb Co.v.Martin, 1902, 1 K.B. 778, 786); and (5) the contract entered into must not amount to a sale by the creditor to the promiser of a security for a debt or of the debt itself (see de Colyar’sLaw of Guarantees and of Principal and Surety, 3rd ed. pp. 65-161, where these principles are discussed in detail by the light of decided cases there cited).
As regards the kind of note or memorandum of the guarantee that will satisfy the Statute of Frauds, it is now provided by § 3 of the Mercantile Law Amendment Act 1856, that “no special promise to be made, by any person after the passing of this act, to answer for the debt, default or miscarriage of another person, being in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit or other proceeding, to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing or by necessary inference from a written document.” Prior to this enactment, which is not retrospective in its operation, it was held in many cases that as the Statute of Frauds requires “the agreement” to be in writing, all parts thereof were required so to be, including the consideration moving to, as well as the promise by, the party to be charged (Wainv.Walters, 5 East, 10;Soundersv.Wakefield, 4 B. & Ald. 595). These decisions, however, proved to be burdensome to the mercantile community, especially in Scotland and the north of England, and ultimately led to the alteration of the law, so far as guarantees are concerned, by means of the enactment already specified. Any writing embodying the terms of the agreement between the parties, and signed by the party to be charged, is sufficient; and the idea of agreement need not be present to the mind of the person signing (perLindley, L.J., inIn reHoyle—Hoylev.Hoyle, 1893, 1 Ch., at p. 98). It is, however, necessary that the names of the contracting parties should appear somewhere in writing; that the party to be charged, or his agent, should sign the memorandum or note of agreement, or else should sign another paper referring thereto; and that, when the note or memorandum is made, a complete agreement shall exist. Moreover, the memorandum must have been made before action brought, though it need not be contemporaneous with the agreement itself. As regards the stamping of the memorandum or note of agreement, a guarantee cannot, in England, be given in evidence unless properly stamped (Stamp Act 1891). A guarantee for the payment of goods, however, requires no stamp, beingwithin the exception contained in the first schedule of the act. Nor is it necessary to stamp a written representation or assurance as to character within 9 Geo. IV. c. 14,supra. If under seal, a guarantee requires sometimes anad valoremstamp and sometimes a ten-shilling stamp; in other cases a sixpenny stamp generally suffices; and, on certain prescribed terms, the stamps can be affixed any time after execution (Stamp Act 1891, § 15, amended by § 15 of the Finance Act 1895).
The liability incurred by a surety under his guarantee depends upon its terms, and is not necessarily co-extensive with that of the principal debtor. It is, however, obvious that asExtent of surety’s liability.the surety’s obligation is merely accessory to that of the principal it cannot as such exceed it (de Colyar,Law of Guarantees, 3rd ed. p. 233; Burge,Suretyship, p. 5). By the Roman law, if there were any such excess the surety’s obligation was renderedwhollyvoid and not merely voidpro tanto. By many existing codes civil, however, a guarantee which imposes on the surety a greater liability than that of the principal is not thereby invalidated, but the liability is merely reducible to that of the principal (Fr. and Bel. 2013; Port. 823; Spain, 1826; Italy, 1900; Holland, 1859; Lower Canada, 1933). By sec. 128 of the Indian Contract Act 1872 the liability of the surety is, unless otherwise provided by contract, coextensive with that of the principal. Where the liability of the surety islessextensive in amount than that of the principal debtor, difficult questions have arisen in England and America as to whether the surety is liable only forpartof the debt equal to the limit of his liability, or, up to such limit, for thewholedebt (Ellisv.Emmanuel, 1 Ex. Div. 157;Hobsonv.Bass, 6 Ch. App. 792; Brandt,Suretyship, sec. 219). The surety cannot be made liable except for a loss sustained by reason of the default guaranteed against. Moreover, in the case of a joint and several guarantee by several sureties, unless all sign it none are liable thereunder (National Pro. Bk. of Englandv.Brackenbury, 1906, 22TimesL.R. 797). It was formerly considered in England to be the duty of the party taking a guarantee to see that it was couched in language enabling the party giving it to understand clearly to what extent he was binding himself (Nicholsonv.Paget, 1 C. & M. 48, 52). This view, however, can no longer be sustained, it being now recognized that a guarantee, like any other contract, must, in cases of ambiguity, be construed against the party bound thereby and in favour of the party receiving it (Mayerv.Isaac, 6 M. & W. 605, 612;Woodv.Priestner, L.R. 2 Exch. 66, 71). The surety is not to be changed beyond the limits prescribed by his contract, which must be construed so as to give effect to what may fairly be inferred to have been the intention of the parties, from what they themselves have expressed in writing. In cases of doubtful import, recourse to parol evidence is permissible, to explain, but not to contradict, the written evidence of the guarantee. As a general rule, the surety is not liable if the principal debt cannot be enforced, because, as already explained, the obligation of the surety is merely accessory to that of the principal debtor. It has never been actually decided in England whether this rule holds good in cases where the principal debtor is an infant, and on that account is not liable to the creditor. Probably in such a case the surety might be held liable by estoppel (seeKimballv.Newell, 7 Hill (N.Y.) 116). When directors guarantee the performance by their company of a contract which is ultra vires, and therefore not binding on the latter, the directors’ suretyship liability is, nevertheless, enforceable against them (Yorkshire Railway Waggon Co.v.Maclure, 21 Ch. D. 309 C.A.).
It is not always easy to determine for how long a time liability under a guarantee endures. Sometimes a guarantee is limited to a single transaction, and is obviously intended to be security against one specific default only. On the other hand, it as often happens that it is not exhausted by one transaction on the faith of it, but extends to a series of transactions, and remains a standing security until it is revoked, either by the act of the parties or else by the death of the surety. It is then termed a continuing guarantee. No fixed rules of interpretation determine whether a guarantee is a continuing one or not, but each case must be judged on its individual merits; and frequently, in order to achieve a correct construction, it becomes necessary to examine the surrounding circumstances, which often reveal what was the subject-matter which the parties contemplated when the guarantee was given, and likewise what was the scope and object of the transaction between them. Most continuing guarantees are either ordinary mercantile securities, in respect of advances made or goods supplied to the principal debtor or else bonds for the good behaviour of persons in public or private offices or employments. With regard to the latter class of continuing guarantees, the surety’s liability is, generally speaking, revoked by any change in the constitution of the persons to or for whom the guarantee is given. On this subject it is now provided by section 18 of the Partnership Act 1890, which applies to Scotland as well as England, that “a continuing guarantee or cautionary obligation given either to a firm or to a third person in respect of the transactions of a firm, is, in the absence of agreement to the contrary, revoked as to future transactions by any change in the constitution of the firm to which, or of the firm in respect of the transactions of which the guaranty or obligation was given.” This section, like the enactment it replaces, namely, sec. 4 of the Mercantile Law Amendment Act 1856, is mainly declaratory of the English common law, as embodied in decided cases, which indicate that the changes in the persons to or for whom a guarantee is given may consist either of an increase in their number, of a diminution thereof caused by death or retirement from business, or of the incorporation or consolidation of the persons to whom the guarantee is given. In this connexion it may be stated that the Government Offices (Security) Act 1875, which has been amended by the Statute Law Revision Act 1883, contains certain provisions with regard to the acceptance by the heads of public departments of guarantees given by companies for the due performance of the duties of an office or employment in the public service, and enables the Commissioners of His Majesty’s Treasury to vary the character of any security, for good behaviour by public servants, given after the passing of the act.
Before the surety can be rendered liable on his guarantee, the principal debtor must have made default. When, however, this has occurred, the creditor, in the absence of express agreement to the contrary, may sue the surety, without even informing him of such default having taken place, or requiring him to pay, and before proceeding against the principal debtor or resorting to securities for the debt received from the latter. In those countries where the municipal law is based on the Roman civil law, sureties usually possess the right (which may, however, be renounced by them) originally conferred by the Roman law, of compelling the creditor to insist on the goods, &c. (if any) of the principal debtor being first “discussed,”i.e.appraised and sold, and appropriated to the liquidation of the debt guaranteed (see Codes Civil, Fr. and Bel. 2021 et seq.; Spain, 1830, 1831; Port. 830; Germany, 771, 772, 773; Holland, 1868; Italy, 1907; Lower Canada, 1941-1942; Egypt [mixed suits] 612;ibid.[native tribunals] 502), before having recourse to the sureties. This right, according to a great American jurist (Chancellor Kent inHayesv.Ward, 4 Johns. New York, Ch. Cas. p. 132), “accords with a common sense of justice and the natural equity of mankind.” In England this right has never been fully recognized. Neither does it prevail in America nor, since the passing of the Mercantile Law Amendment Act (Scotland) 1856, s. 8, is it any longer available in Scotland where, prior to the last-named enactment, the benefit of discussion, as it is termed, existed. In England, however, before any demand for payment has been made by the creditor on the surety, the latter can, as soon as the principal debtor has made default, compel the creditor, on giving him an indemnity against costs and expenses, to sue the principal debtor if the latter be solvent and able to pay (perA. L. Smith, L.J., inRousev.Bradford Banking Company, 1894, 2 Ch. 75;perLord Eldon inWrightv.Simpson, 6 Ves., at p. 733), and a similar remedy is also open to the surety in America (see Brandt onSuretyship, par. 205,p. 290) though in neither of these countries nor in Scotland can one of several sureties, when sued for the whole guaranteed debt by the creditor, compel the latter to divide his claim amongst all the solvent sureties, and reduce it to the share and proportion of each surety. However, thisbeneficium divisionis, as it is called in Roman law, is recognized by many existing codes (Fr. and Bel. 2025-2027; Spain, 1837; Portugal, 835-836; Germany, 426; Holland, 1873-1874; Italy, 1911-1912; Lower Canada, 1946; Egypt [mixed suits], 615, 616).
The usual mode in England of enforcing liability under a guarantee is by action in the High Court or in the county court. It is also permissible for the creditor to obtain redress by means of a set-off or counter-claim, in an action brought against him by the surety. On the other hand, the surety may now, in any court in which the action on the guarantee is pending, avail himself of any set-off which may exist between the principal debtor and the creditor. Moreover, if one of several sureties for the same debt is sued by the creditor or his guarantee, he can, by means of a proceeding termed a third-party notice, claim contribution from his co-surety towards the common liability. Independent proof of the surety’s liability under his guarantee must always be given at the trial; as the creditor cannot rely either on admissions made by the principal debtor, or on a judgment or award obtained against him (Ex parte Young In re Kitchin, 17 Ch. Div. 668). Should the surety become bankrupt either before or after default has been made by the principal debtor, the creditor will have to prove against his estate. This right of proof is now in England regulated by the 37th section of the Bankruptcy Act, 1883, which is most comprehensive in its terms.
A person liable as a surety for another under a guarantee possesses various rights against him, against the person to whom the guarantee is given, and also against thoseRights of sureties.who may have become co-sureties in respect of the same debt, default or miscarriage. As regards the surety’s rights against the principal debtor, the latter may, where the guarantee was made with his consent but not otherwise (seeHodgsonv.Shaw, 3 Myl. & K. at p. 190), after he has made default, be compelled by the surety to exonerate him from liability by payment of the guaranteed debt (perSir W. Grant, M.R., inAntrobusv.Davidson, 3 Meriv. 569, 579;perLindley, L.J., inJohnstonv.Salvage Association, 19 Q.B.D. 460, 461; and seeWolmershausenv.Gullick, 1893, 2 Ch. 514). The moment, moreover, the surety has himself paid any portion of the guaranteed debt, he is entitled to rank as a creditor for the amount so paid, and to compel repayment thereof. In the event of the principal debtor’s bankruptcy, the surety can in England, if the creditor has not already proved in respect of the guaranteed debt, prove against the bankrupt’s estate, not only in respect of payments made before the bankruptcy of the principal debtor, but also, it seems, in respect of the contingent liability to pay under the guarantee (seeEx parte Delmar re Herepath, 1889, 38 W.R. 752), while if the creditor has already proved, the surety who has paid the guaranteed debt has a right to all dividends received by the creditor from the bankrupt in respect thereof, and to stand in the creditor’s place as to future dividends. This right is, however, often waived by the guarantee stipulating that, until the creditor has received full payment of all sums over and above the guaranteed debt, due to him from the principal debtor, the surety shall not participate in any dividends distributed from the bankrupt’s estate amongst his creditors. As regards the rights of the surety against the creditor, they are in England exercisable even by one who in the first instance was a principal debtor, but has since become a surety, by arrangement with his creditor, duly notified to the creditor, though not even sanctioned by him. This was decided by the House of Lords in the case ofRousev.The Bradford Banking Co., 1894, A.C. 586, removing a doubt created by the previous case ofSwirev.Redman, 1 Q.B.D. 536, which must now be treated as overruled. The surety’s principal right against the creditor entitles him, after payment of the guaranteed debt, to the benefit of all securities, whether known to him (the surety) or not, which the creditor held against the principal debtor; and where, by default orlachesof the creditor, such securities have been lost, or rendered otherwise unavailable, the surety is dischargedpro tanto. This right, which isnotin abeyance till the surety is called on to pay (Dixonv.Steel, 1901, 2 Ch. 602), extends to all securities, whether satisfied or not, given before or after the contract of suretyship was entered into. On this subject the Mercantile Law Amendment Act, 1856, § 5, provides that “every person who being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security, which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or any co-surety, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty; and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him, provided always that no co-surety, co-contractor, or co-debtor shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned person shall be justly liable.” This enactment is so far retrospective that it applies to a contract made before the act, where the breach thereof, and the payment by the surety, have taken place subsequently. The right of the surety to be subrogated, on payment by him of the guaranteed debt, to all the rights of the creditor against the principal debtor is recognized in America (Tobinv.Kirk, 80 New York S.C.R. 229), and many other countries (Codes Civil, Fr. and Bel. 2029; Spain, 1839; Port. 839; Germany, 774; Holland, 1877; Italy, 1916; Lower Canada, 2959; Egypt [mixed suits], 617;ibid.[native tribunals], 505).
As regards the rights of the surety against a co-surety, he is entitled to contribution from him in respect of their common liability. This particular right is not the result of any contract, but is derived from a general equity, on the ground of equality of burden and benefit, and exists whether the sureties be bound jointly, or jointly and severally, and by the same, or different, instruments. There is, however, no right of contribution where each surety is severally bound for a given portion only of the guaranteed debt; nor in the case of a surety for a surety; (seeIn re Denton’s Estate, 1904, 2 Ch. 178 C.A.); nor where a person becomes a surety jointly with another and at the latter’s request. Contribution may be enforced, either before payment, or as soon as the surety has paid more than his share of the common debt (Wolmershausenv.Gullick, 1803, 2 Ch. 514); and the amount recoverable is now always regulated by the number of solvent sureties, though formerly this rule only prevailed in equity. In the event of the bankruptcy of a surety, proof can be made against his estate by a co-surety for any excess over the latter’s contributive share. The right of contribution is not the only right possessed by co-sureties against each other, but they are also entitled to the benefit of all securities which have been taken by any one of them as an indemnity against the liability incurred for the principal debtor. The Roman law did not recognize the right of contribution amongst sureties. It is, however, sanctioned by many existing codes (Fr. and Bel. 2033; Germany, 426, 474; Italy, 1920; Holland, 1881; Spain, 1844; Port. 845; Lower Canada, 1955; Egypt [mixed suits], 618,ibid.[native tribunals], 506), and also by the Indian Contract Act 1872, ss. 146-147.
The discharge of a surety from liability under his guaranteemay be accomplished In various ways, he being regarded, especially in England and America, as a “favoured debtor” (perTurner, L.J., inWheatleyv.Bastow, 7 De G. M. & G. 279, 280;perEarl of Selborne, L.C., inIn re Sherry—London and County Banking Co.v.Terry, 25 Ch. D., at p. 703; and see Brandt onSuretyship, 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 (seeRickabyv.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 bylachesor 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 notper sedetermine 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.