tinuing.

Power to give time and compound.

now1or] shall at any time be due to you from the said A. or his
representatives [A. & Co.] on the general balance of his [their]
account with you not exceeding £
with interest thereon at
the rate of
per cent. per annum from the time of notice
requiring payment of the amount hereby guaranteed being given as

To be con- hereinafter proved : 2 AND I declare that this guarantee shall be a continuing guarantee to the extent at any time of £ with interest thereon from the date when payment shall be required, and shall not be considered as wholly or partially satisfied by the payment or liquidation at any time or times hereafter of any sum or sums of money for the time being due upon such general balance as aforesaid, but shall extend to cover and be a security for all future sum and sums of money at any time due to you thereon within the limit aforesaid, notwithstanding any such payment or liquidation : AND I further declare that you may grant time or other indulgence to or compound with the said A. or his representatives [A. & Co.], or any person or persons or company liable on any bill, note, or other security or guarantee held by you without affecting this guarantee, and that all dividends, compositions, and payments received by you from the said A. [A. & Co.], or any other person or persons or company so liable, or his or their estate, shall be taken and applied as payments in gross, without any right on the part of me or my representatives to stand in your place in respect of, or to claim the benefit of any such dividends, compositions, or payments, or any security held by you until you shall have received the full amount of all your claims against the said A. or his representatives [A. & Co.] which are covered by this guarantee, and that this guarantee shall apply to and secure any ultimate balance which shall remain due to you within the limit aforesaid, and that you may enforce this guarantee, notwithstanding that any bills or other

Full form of guaran.

tee.

1 See Morrell v. Cowan, 1877, 7 Ch. D. 151 ; 47 L. J. Ch. 73.

2 See Hobson v. Bass, 1872, 6 Ch. 792; Ellis v. Emmanuel, 1875, 1 Ex. D. 157. The following is a full form, which may be substituted, mutatis mutandis, for the clause in the text to this point:

"In consideration, &c., I, the undersigned B., of, &c., hereby guarantee to you the payment of all moneys which are now or shall from time to time be due to you from the said A. or his representatives, alone, or jointly with any other person or persons, or company, either on account current or for money advanced or paid, or in respect of bills, drafts, notes, or other negotiable securities made, drawn, accepted, advised, indorsed or paid by you or on your account for the said A. or his representatives alone or jointly as aforesaid, and also of all moneys which you may from time to time be or become liable to pay in respect of any bills, letters of credit, circular-notes, or any other dealing or transaction on account or for the accommodation or benefit of the said A. or his representatives, alone or jointly as aforesaid, inclusive of interest, commission, and other usual bankers' charges, and all costs and expenses incurred by you in respect of the premises, or this guarantee, and inclusive also of interest at any rate not exceeding (unless otherwise agreed) the Bank of England rate for the time being, or five per centum per annum if the bank rate shall be below that rate, to be calculated with half-yearly rests, according to the usual custom of bankers, although the relation of customer and banker may have ceased, so as the liability of me or my representatives hereunder shall not exceed at any one time the sum of £ with interest," &c., as in the

text.

3. See Ellis v. Emmanuel, 1875, 1 Ex. D. 157.

Death of guarantor or change

in partners

not to

invalidate guarantee.2

Account settled

between customer and bank to be binding.

Amount guaranteed to be due on notice.

Guarantee.

instruments covered by it may be then in circulation or outstanding,1 or that you may then have any other guarantee for the said balance: AND I further declare that this guarantee shall not be affected by my death, but shall remain in force until one calendar month after notice in writing to determine or discontinue the same shall have been given to you by me or my representatives, and shall continue to be binding, notwithstanding any changes which may from time to time take place in the partners [in the said firm of A. & Co. or] in your firm AND I further agree that any account settled or stated by or between you and the said A. or his representatives [A. & Co.], or admitted by [him or] them, may be adduced by you and received as conclusive evidence against me and my representatives of the balance or amount thereby appearing due from the said A. or his representatives [A. & Co.] to you, and shall not be disputed or questioned by me or my representatives: AND I further agree that the amount hereby guaranteed shall be due and payable to you at the expiration of days after notice requiring such payment shall have been delivered or sent through the post by registered letter in the usual way by you or your solicitors to me or my representatives without the necessity of naming them. As WITNESS my hand this

day of

II. GUARANTEE by DIRECTORS of a COMPANY to Bankers for
Limited Amounts.

, we,

IN consideration of your agreeing to grant to the X. Co., Limited, at our request, a credit overdraft to the extent of £ the undersigned, hereby guarantee to you the payment of all moneys which shall at any time be due from the said X. Co. to you on the general balance of their account with you (such balance to include all interest, commission, and other charges and expenses which you may in the course of your business as bankers charge in respect of any advances or discounts made to them or on their account, or for keeping their said account, with you), and we hereby agree that this guarantee shall be a continuing guarantee to the extent at any one time or times hereafter of any sum or sums of money for the time being due upon such general balance as aforesaid AND further, that this guarantee shall be in force and subsisting whether the whole of the said sum of £ shall be actually advanced by you or not.4

1 See, as to this clause, Midland Banking Company v. Chambers, 1868, L. R. 7 Eq. 179; 4 Ch. 398; Hobson v. Bass, 1872, L. R. 6 Ch. 792; and as to companies, see Gray v. Seckham, 1872, L. R. 7 Ch. 680; Ex parte National Provincial Bank, 1881, 17 Ch. D. 98.

2 In the absence of agreement to the contrary, the guarantee would be revoked as to any future transactions by a change in the constitution of the firm of A. & Co., or of the firm of bankers (Partnership Act, 1890, 53 & 54 Vict. c. 39, s. 18).

3 Mere notice of death is not notice under this clause (Re Silvester, [1895] 1 Ch. 573).

4 See Burton v. Gray, L. R. 8 Ch. 932.

Limit of liability.1

Provision for death

Power to give time, &c., as in last form. PROVIDED always, and we expressly stipulate that we shall respectively be liable on this guarantee only to the extent of the sums set opposite to our respective names in the schedule hereto: AND further, that if, &c., of any during the continuance of this guarantee, any of us shall die or guarantor. shall cease to be a director or directors of the said X. Co., Limited, and if that company shall be unable to substitute a guarantor or guarantors in his or their place who shall be satisfactory to you, then the said company may pay to you the amount which in the said schedule shall be set opposite to the name or names of the person or persons who shall so die or cease to be a director or directors as aforesaid, and such payment shall be accepted by you in full satisfaction of all claims against such person or persons in respect of this guarantee.

Recital of guarantee.

III. AGREEMENT between DIRECTORS of a COMPANY in respect of a Guarantee given by them for the Company.2

AGREEMENT made, &c., between six parties: WHEREAS by a guarantee bearing even date herewith the said several persons parties hereto have guaranteed to the Bank certain sums

set opposite to their respective names in the schedule to the said guarantee as security for the X. Co. of which the parties hereto are the present directors: AND WHEREAS with a view to provide for the contingency of their ceasing to be directors of the said X. Co., they have agreed between themselves in manner hereinafter appearAgreement. ing: NOW THESE PRESENTS WITNESS, that each of the said parties hereto doth hereby agree with the others of them jointly and severally as follows:

for release of any

dying or

be director.

1. IF at any time during the continuance of the said guarantee, guarantor any one or more of the parties hereto shall die or shall (except by ceasing to ceasing to hold the necessary qualification as director or in consequence of anything done or permitted by him or them contrary to his or their duty) cease to be a director or directors of the said X. Co., then the other parties hereto, or such of them as shall for the time being be directors of the said X. Co., will forthwith procure the said bank to release the said party or parties so dying or ceasing to be a director or directors, and his or their estates and effects, either by procuring the said bank to accept a substitute or substitutes as guarantor or guarantors in his or their place, or by payment to the said bank of the sum set opposite to the name or names of such person or respective persons in the schedule to the On payment said guarantee: PROVIDED ALWAYS that the liability to procure shares. such release shall not arise until payment to the said X. Co. shall

up of his

1 Under this clause the guarantors are liable to contribute in proportion to the named sums (Ellesmere Brewery Co. v. Cooper, [1896] 1 Q. B. 75).

2 See last Precedent.

have been made by the representatives of the person or persons so
dying, or by the person or persons so ceasing to be a director or
directors of the amount for the time being uncalled or unpaid upon
the shares standing in the name or names of the respective person
or persons so dying or ceasing to be a director or directors, if the
then existing directors of the said X. Co. shall require such payment
to be made. IN WITNESS, &c.

See other Precedents, sub tit. BOND; INDEMNITY; and see also INDEX
OF FORMS.

Guarantee Society.-See GUARANTEE; LIFE Insurance.

Guardian ad Litem.-A guardian ad litem is a person who
defends an action or other proceedings on behalf of a party defendant
who is under disability, owing either to infancy or want of mental
capacity.

INFANTS, IN CASE OF.-Service of a writ or summons on an infant is
effected by serving it on his father or guardian, or if none, then upon
the person with whom the infant resides, or under whose care he is
(R. S. C., 1883, Order 9, r. 4).

Infants may, in the manner heretofore practised in the Chancery
Division, defend by their guardians appointed for that purpose (Order
16, r. 16).

Appearance. An infant cannot appear except by a guardian ad litem.
No order is required for the appointment of such guardian (as was the
case under the old practice), but the solicitor applying to enter the
appearance must make and file an affidavit in the prescribed form
(Order 16, r. 18). Similarly, where an infant is served with a petition,
notice of motion, or summons, he must appear at the hearing by guardian
ad litem in all cases in which the appointment of a special guardian is
not provided for (Order 16, r. 19).

Default of Appearance.-Where no appearance has been entered to
a writ of summons for a defendant who is an infant, the plaintiff must,
before proceeding further with the action against the defendant, apply
to the Court or a judge for an order that some proper person be assigned
guardian of such defendant, by whom he may appear and defend the
action. But no such order will be made unless it appears, on the
hearing of such application, that the writ of summons was duly served,
and that notice of such application was, after the expiration of the time
allowed for appearance, and at least six clear days before the day in
such notice named for hearing the application, served upon or left at
the dwelling-house of the person with whom or under whose care such
defendant was at the time of serving such writ of summons, and also
(in the case of such defendant being an infant not residing with or
under the care of his father or guardian) served upon or left at the
dwelling-house of the father or guardian, if any, of the infant, unless the
Court or judge at the time of hearing such application shall dispense with
such last-mentioned service (Order 13, r. 1, taken from C. O. 7, r. 3).

The procedure under this rule applies to the case of an originating
summons (In re Pepper, Pepper v. Pepper, 1884, 32 W. R. 765). In In re
Dawson, Johnstone v. Hill, 1889, 41 Ch. D. 415, Chitty, J., applied it to
the case of an ordinary summons for the determination of a question
between co-defendants.

The practice prescribed by the rule must be followed even though the infant and his guardian are out of the jurisdiction (O'Brien v. Maitland, 1862, 4 De G., F. & J. 331; 45 E. R. 1211; White v. Duvernay, [1891] P. 290). It is very usual to appoint the official solicitor guardian upon an application under this rule. As to the costs, see Order 65, r. 13. To entitle him to costs as between solicitor and client, the order giving him costs must expressly provide for them on that footing (Eady v. Elsdon, [1901] 2 K. B. 460).

Proceedings in Chambers. At any time during proceedings in Chambers in the Chancery Division under any judgment or order, the judge may, if he think fit, request a guardian ad litem to be appointed, for any infant who has been served with notice of the judgment or order (Order 55, r. 27).

Who may be Appointed Guardian ad litem.-A co-defendant having no interest adverse to that of the infant may be appointed (Anon., 1852, 9 Hare, App. xxvii.; 68 E. 770); but not the plaintiff; nor a married woman (In re Duke of Somerset, Thynne v. St. Maur, 1887, 34 Ch. D. 465); nor a person out of the jurisdiction (Anon., 1854, 18 Jur. 770). It is desirable, if possible, that he should be a relation, connection, or friend (Foster v. Cautley, 1853, 10 Hare, App. xxiv.; 68 E. R. 1127).

Appearance by Guardian.-A guardian ad litem is not entitled to appear in person (In re Berry, Berry v. Berry, 1903, W. N. 125, referring to Murray v. Sitwell, 1902, W. N. 119).

Consent on Behalf of Infants.—The guardian ad litem can consent on behalf of the infant in any matter of procedure (Knatchbull v. Foule, 1876, 1 Ch. D. 604; Fryer v. Wiseman, 1876, 24 W. R. 205; Piggott v. Toogood, 1904, W. N. 130; and see Order 16, r. 21). This includes the power to compromise (Leeming v. Murray, 1880, 28 W. R. 338), but not where the agreement is of no benefit to the infant (Rhodes v. Swithenbank, 1889, 22 Q. B. D. 577). The Court has no jurisdiction to enforce a compromise against the wish of the guardian (In re Birchall, Wilson v. Birchall, 1880, 16 Ch. D. 41).

Discovery.-A guardian ad litem can be compelled to answer interrogatories, or to file an affidavit of documents (Order 31, r. 29).

Costs. A guardian ad litem is not ordinarily liable for costs of suit, except in cases of misconduct (Morgan v. Morgan, 1865, 11 Jur. N. S. 233).

PERSONS OF UNSOUND MIND, IN CASE OF.-A defendant of unsound mind not so found by inquisition, defends an action brought against him by a guardian appointed for that purpose (Order 16, r. 17). The position of such guardian is precisely the same as in the case of an infant. The practice, too, as stated above with regard to infant defendants, is precisely similar in case of a defendant who is non compos mentis, with the following exceptions:-After service of the writ of summons, the proper course is for an appearance to be entered, and then an order of Court obtained appointing a guardian ad litem (Daniell's Ch. Pr., p. 137). Whether discovery can be obtained from the guardian ad litem of a person of unsound mind, quære. Order 31, r. 29, applies only to the case of infants.

Where a solicitor of the Court had been appointed guardian to a defendant of unsound mind, and the defendant recovered pending suit, but delayed applying for discharge of the guardian, he was ordered to pay the costs of the guardian with liberty to add them to his own (Frampton v. Webb, 1863, 11 W. R. 1018).