GUARANTEES.

74. In order to determine what is a promise to answer for the debt or default of another within the 4th section of the Statute of Frauds there are five defined rules of law to be observed. What are they?

(1.) In the first place, it has been decided that the sort of promise which the statute means, and which must be reduced into writing, is a promise to answer for the debt, default, or miscarriage of another person for which that other person himself continues liable. (Birkmyr v. Darnell, Salk. 27.)

(2.) In the second place, the promise which is to be reduced into writing is a promise made to the person to whom the original debtor is liable; but a promise made to the debtor himself, or even to a third person, to answer is not within the 4th section, and does not require to be reduced into writing. (Eastwood v. Kenyon, 11 A. & E. 438.)

(3.) The consideration which supports the promise need not in this particular case be in writing, though one must of course exist, and must be proved at the trial should the matter be carried so far. The promise need only be in writing. (19 & 20 Vict. c. 97, s. 3; Haynes's Student's Stat., 2nd ed., 153.)

(4.) It has also been decided that if one makes a promise to answer for the debt of another, for which that other never becomes legally indebted to the promisee, that would be within the section if at the time the promise was made the promisor and promisee expected that a legal obligation would be incurred by a third person. (Mountstephen v. Lakeman, L. R. 5 Q. B. 613; 39 L. J. Q. B. 275.)

The idea that a verbal promise even to answer for the debt of another, for which that other remained liable, might be available if founded on an entirely new consideration conferring a distinct benefit upon the party making such promise is confuted by Serjeant Williams, in his note to Forth v. Stanton, 1 Wms. Saund. 211. The rule there laid down, which has ever since been approved of, is that the only test and criterion by which to determine whether the promise needs to be in writing is the question whether it is or is

not a promise to answer for a debt, default, or miscarriage of another for which that other continues liable.

It has also been considered that, in order to make the statute applicable, the immediate object for requiring the defendant's liabi lity must be that he shall pay the debt of another if that other does not; and consequently it does not apply to the appointment of an agent to sell on a del credere commission.

(5.) The default or miscarriage of another person to which the statute applies need not, however, be a default in payment of a debt or in performing a contract. (Kirkham v. Martyr, 2 B. & A. 613; J. W. Smith's Law of Contracts, by V. T. Thompson, 7th ed., 100 -113.) Owing to an attempt having been made to evade this section, and to render the law on the subject more certain, sect. 6 of 9 Geo. IV. c. 14, was passed. It enacts as follows:

6. 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 [there]upon, unless such representation or assurance be made in writing, signed by the party to be charged therewith. (Haynes's Student's Statutes, 2nd ed. 95.)

GUARDIAN AND WARD.

75. Under what circumstances can infants appoint their own guardians? What are such guardians called, how are they appointed, and what powers are given to them by law?

In the absence only of a guardian, the infant may, after fourteen, choose one for himself. The election is usually made before a judge in Court, but this is not necessary. The infant's election of course does not supersede the power of the Court to appoint another if it be deemed advantageous to do so. The advisable course is always to apply to the Court to appoint a guardian (see Wharton's Law Lexicon, 6th ed., 428); but it must not be forgotten that the

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infant is thereby constituted a ward of Court, with all its attendant advantages, inconvenience, and expense. (De Pereda v. De Mancha, 51 L. J. Ch. 204.) The powers of such guardians will be the same as other guardians of infants, viz.:-To take the custody and tuition of the infant till the age of twenty-one; to bring an action of trespass against any who takes away or detains the infant, and recover damages for the use of the infant; to take into their custody the infant's real and personal property till the age of twenty-one, and then to account to the once infant for the same, without deducting anything for their time and trouble. The office is not assignable, but is determined by death. If the guardian, being an unmarried woman, marry, the office is not transferred to her husband, but she herself continues to act. (Wharton's Law Lexicon, 6th ed., 427.)

HUSBAND AND WIFE.

76. What powers of disposition, by deed or will, has a married woman over real estate settled to her separate use, and real estate not so settled, respectively? Apply the law to the following case:— Devise of real estate to wife absolutely; testator dies, leaving wife and son; the widow marries again, and she and her second husband mortgage the property by deed acknowledged; she afterwards makes a will devising the real estate to her second husband. Who at her death is entitled to the real estate? Would the result have been the same if the real estate had been devised by the first husband to her separate use?

In cases not within the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75) (a), if the real estate is settled upon a married woman for her separate use, she can dispose of the equitable and beneficial interest therein by deed or will, and bind it by her debts created upon the faith of it and by her contracts respecting it as if she were a feme sole (Taylor v. Meads, 34 L. J. Ch. 203, Haynes's Student's Leading Cases, 207); but she cannot dispose of the bare

(a) See sections 2 and 5 of the Act.

legal estate, which is either vested in her husband as trustee for her by operation of law, or in a stranger in whom it may be vested by conveyance as her trustee. If her husband is her trustee, she and he can together by deed acknowledged dispose thereof under 3 & 4 Will. IV. c. 74. If the real estate is not so settled to her separate use, she has no power whatever of disposing thereof except under an express authority given to her for that purpose, and except by deed acknowledged by her and with her husband's concurrence (3 & 4 Will. IV. c. 74), unless such concurrence is dispensed with by an order of the High Court (Queen's Bench Division), under sect. 91 of the same Act.

In the case cited in the question, on the death of the wife the real estate, meaning here thereby freehold estates of inheritance, will devolve upon her son as her heir-at-law, unaffected by her will made during her second coverture, which is a nullity, but subject to the mortgage, which being acknowledged binds both the wife and her heir.

For the reasons explained above, the result would not be the same if the real estate had been devised to the wife for her separate use by her first husband, for then she could dispose of the equitable and beneficial interest by her will, which would be effectual to pass the real estate on her death to her second husband, subject of course to the mortgage.

77. A life interest in the income of property is given in trust for an unmarried woman for her separate use without power of anticipation. She afterwards marries; her husband dies; she marries a second time, not having alienated. What, according to the decisions of the Court of Equity, is her power of alienation (a) before her marriage; (b) during her first marriage; (c) during her widowhood; (d) during her second marriage?

(a) Before her marriage she can deal with the income as she pleases, because neither the separate use nor the restraint on anticipation has then any effect.

(b) During her first marriage she cannot deal with the income until after it has become due, as then the separate use and restraint on anticipation attaches to it.

(c) During her widowhood she can deal with the income as she

pleases, because neither the separate use nor the restraint on anticipation has then any effect.

(d) During her second marriage she cannot deal with the income until after it becomes due, as then the separate estate and restraint on anticipation again attaches to it if she has not alienated it during her widowhood, unless the separate use and restraint on anticipation is limited to her first marriage only, which does not appear to be the case here. (See Tullet v. Armstrong, 1 Beav. 1; Haynes's Student's Leading Cases, 208.)

78. If a married woman having separate estate enter into an engagement to pay a debt, for example, join with her husband in a bond, is her separate estate bound, and if so, on what principle?

Yes; as she thereby binds her separate estate which she is then possessed of, which she is not precluded from anticipating by alienation or otherwise, on the ground that she must have intended to have bound something by joining in the bond, and no other property can be bound by her by that act; and the Court construes the bond so as to give it force as far as possible and not to render it a nonentity as far as she is concerned. She could not thereby mean to execute any power given to her over any property, because to bind property under a power by any instrument she must either have referred to the power in express terms or to the property the subject of the power, neither of which has been done in this case. Again, she could not have meant to have bound her lands or reversionary personal property, for this she could not do— in cases not within the Married Women's Property Act, 1882without a deed acknowledged under 3 & 4 Will. IV. c. 74, and 20 & 21 Vict. c. 57, and this has not been done. (Hulme v. Tenant, 1 Wh. & Tud. L. C. Eq. 521; Haynes's Student's L. C. 204)

The above reasons will still hold good in the case of contracts made by a married woman prior to 1st January, 1883; but as to contracts made on and after that date the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75, s. 1, sub-s. 3), provides that "every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property unless the contrary be shown."