That full freight was not due for the voyage upon the sugars delivered to the underwriters, because the ship had been sold before they were delivered to them on bail by the court; and, taking all the circumstances, the case was to be treated as one, in which both the owners of the ship, and of this part of the cargo, had reluctantly acquiesced in waiving any further prosecution of the voyage, as to that part of the cargo.

That full freight was not due for the voyage for the sugars in the custody of the court; because neither party was in any default on account thereof, the detention being occasioned by the common calamity, and the proceedings for salvage; and the owners thereof never having been in a condition to reship them.

But that a pro rata freight was due upon the sugars delivered to the underwriters, and upon those detained in the custody of the court, for the voyage from Havana to Boston, upon the ground that there had been a mutual dispensation, by both parties, of any further prosecution of the voyage.

That no claim for half profits was admissible, as the cargo never arrived at St. Petersburg, and non constat, that it ever would have arrived there, or if it had arrived, would have yielded any profit, the whole matter of profits resting in contingency.

That the freight, earned pro rata for the voyage, ought to contribute to the salvage with the ship and cargo. Ship Nathaniel Hooper, 3 Sumner, 542.

3. (For the entire voyage.) In general, freight for the entire voyage can only be earned by a due performance of the voyage. The only acknowledged exception is, where there is no default or inability of the carrier ship to perform the voyage, and the ship owner is ready to forward them, but there is a default on the part of the owner of the cargo, or he waives a farther prosecution of the voyage. Ib.

4. (Pro rata itineris.) Freight pro rata itineris is not ordinarily due, unless there has been a voluntary acceptance of the cargo at an intermediate port; and not where there has been an acceptance from mere necessity, occasioned by an overwhelming calamity or superior force. Ib.

5. (Prize courts.)

The doctrines of prize courts, in the administration of prize laws as to freight, are not generally applicable to cases of mere civil commercial adventures, or cases of civil salvage. Ib.

6. (Prize proceedings.) The capture of a neutral ship and cargo, if afterwards restitution is decreed, does not dissolve the contract of affreightment; but, at most, it only suspends it during the prize proceedings. Ib.

7. (Same—unlivery.) A mere unlivery of the cargo during the voyage, occasioned by prize proceedings, or by an overruling calamity, does not absolve the carrier ship from the obligation to carry the goods to the port of destination. lb.

8. (Same.) In case of prize proceedings, if a neutral ship, carrying a neutral cargo in no default, would earn her full freight, she must wait and be ready to take the cargo on to the port of destination, when restored; otherwise, at most, (it seems), a pro rata freight only would be due. Ib.

9. (Jurisdiction of admiralty in cases of.) Courts of admiralty have full jurisdiction, as incidental to cases of prize, and salvage, and other proceedings in rem, to decree freight to the ship owner in proper cases. lb. GRANT. (Reservation to public.) The charter of the town of

L. was granted to sixty-four proprietors, each to take one seventieth part of the township, which, with the six public rights, were to make the whole township. This vested in the proprietors one seventieth part each, and did not vest in them the title to the other six parts, to hold in trust. Grammar School v. Burt, 11 Vermont, 632.

2. (Legislative.) A legislative grant, to a corporation aggregate, vests an absolute title, without words of perpetuity, and the same cannot be afterwards controlled by the legislature, any more than an absolute grant to individuals. Ib.

3. (Same.) A grant made for the purpose of education can no more be, afterwards, vacated or controlled by the legislature, than if made for a private purpose. Ib.

GUARANTY. (Limitation of as to time.) Where a note was

guarantied to be "good and collectable two years,” it was held, that the guarantee was liable upon his contract, at any time after the note became due within the two years. Marsh v. Day, 18 Pickering, 321.

2. (Difference between guaranty and surety.) The defendant being the payee of a negotiable note, payable in four annual instalments, indorsed it to the plaintiff, stating that he would guaranty it, and the plaintiff wrote over the payee's signature the words, "I order the within note paid to T. [the plaintiff] and guaranty the payment of the same," and the defendant assigned to the plaintiff a mortgage given as security for the note. No demand was made on the promisor to pay the note, and he remained solvent for six months after the last instalment became due, and was permitted to receive the profits of the mortgaged property for three years after that time; and notice of the nonpayment two years afterwards was given to the defendant and a demand of payment made on him. It was held, that the defendant was a guarantee, and not a surety, and that he was discharged from liability by the laches of the plaintiff in not using due diligence to obtain payment from the promisor and not giving the defendant seasonable notice of the non-payment. bot v. Gay, 18 Pickering, 534.

Tal

3. (Duty of person taking.) Upon a guaranty in these words, "April 10th, 1834, I warrant the within note good and collectable until the first day of July, 1834," the person taking the guaranty is bound to resort to legal measures within a reasonable time after the date of the guaranty, and to pursue them with common diligence, and, if possible, consummate the process within the time limited; or show, what is equivalent, the absolute insolvency of the maker of the note. Wheeler v.

Lewis, 11 Vermont, 265. GUARDIAN. (When chargeable with interest.) In general, if

a guardian neglects to put his ward's money at interest, he will be charged with interest; and in cases of gross delinquency, with compound interest. Boynton v. Dyer, 18 Pickering, 1. 2. (Investments by.) A guardian is entitled to a reasonable time in which to make an investment of his ward's money. Ib.

3. (Same.) Where a guardian had settled two accounts in the Probate Court without charging himself with interest, and no adjudication was made on this subject, it was held, that on the presentation of his third account he should be charged with interest, from an early period after his appointment, in the same manner as if no previous account had been settled. Ib.

4. (Same.) But if the question of interest had been put in issue and decided on the settlement of the former accounts, it could not be revised so long as the former decrees remained in force. Ib.

5. (Same.) Where a party interested in the estate of a ward, certified his approval of an account in which the guardian had not charged himself with interest, but no discussion or controversy was had on this subject, it was held, that he was not precluded from having the error corrected when the guardian presented a subsequent account for allowance in the Probate Court. But where a ward, seven months after coming of age, certified that his guardian's final account was correct, and gave him a release of all demands, he was not permitted to open the settlement because the guardian had not charged himself with interest. Ib.

6. (Same.) In a guardian's account the interest for a year should be added to the principal, and the current expenses of the year should be deducted from the amount, and the balance will be the principal for next year; and so on from year to year. Ib. HUSBAND AND WIFE. (Joinder of in action.) Husband and wife may join in an action of the case for an obstruction of a way appurtenant to the wife's land in their occupation or possession. Cushing v. Adams, 18 Pickering, 110.

2. (Same.) In such an action, an averment in the declaration,

that the plaintiffs were seised of the land in demesne as of fee in right of the wife, was held, after verdict, to include virtually an averment of occupation or possession. Ib.

INDIAN, CONTRACT OF. (Consideration.) The contract of an Indian is not prima facie evidence of a consideration, but the consideration must be proved, and by two witnesses. Pack v. Pack, 9 Porter, 297.

2. (Same.) The statute on the subject applies as well to contracts between Indians, as to those between a white man and an Indian. Ib.

INDICTMENT. (Surplusage.) Mere surplusage will not vitiate an indictment, and need not be established in proof. United States v. Howard, 3 Sumner, 12.

2. (Same.) But no allegation, whether it be necessary or unnecessary, more or less particular, which is descriptive of the identity of what is legally essential to the charge in the indictment, can be rejected as surplusage. Ib.

3. (Variance.) A variance between the indictment and the evidence is not material, provided the substance of the matter be found. Ib.

4. (Misnomer.) In case of a misnomer, a variance is fatal, only where there is a misnomer of a party whose existence is essential to the offence charged in the indictment. Ib.

Ib.

5. (Same.) In an indictment under the act of congress of 1825, ch. 276, 22, § 5, the ownership of the vessel, was alleged to be in William Nye and others, instead of Willard Nye and others held, that an allegation of the particular ownership is unnecessary and immaterial, and that the misnomer above mentioned is of no consequence; it being sufficient to allege that the owners are citizens of the United States. INFANT AND INFANCY. (Relinquishment of minor's services.) In a case where the father of a minor son had, at the request of the plaintiff, relinquished to the son all claim from his services, and authorized him to act for himself, stating that he would pay no debts incurred by the son, and the son had contracted with the plaintiff to labor for him, it was held the father was not bound to pay the plaintiff's charges during the sickness of the son, unless upon proof of an express contract, or of circumstances from which one could be implied. Varney v. Young, 11 Vermont, 258.

2. (Same.) A father may give to his infant son a part as well as the whole period of his minority. Tillotson v. McCrillis, 11 Vermont, 477.