the building in its altered state than before, otherwise the alteration would not be material. It was held, that the instruction was correct; and that in the case of a material alteration it was not necessary, in order to avoid the policy, for the company to show that the loss had been occasioned by the alteration. Merriam v. Middlesex Mutual Fire Ins. Co. 21 Pick. 162.

2. (Evidence in action against insurers.) Where a survey was called, in a foreign port, upon a vessel which had sustained an injury, and the surveyors recommended a sale, it was held, in an action against the insurers of the vessel, that it was not competent for the insured to prove by the testimony of one of the surveyors, the declarations and opinions of another surveyor while engaged in such survey, it appearing, that the insured had the deposition of such other surveyor in their possession; but that, if this point were less clear, the subsequent introduction of such deposition by them was a waiver of an exception founded on the rejection of such testimony. Orrock v. Commonwealth Ins. Co. 21 Pick. 456.

3. (Same.) In such case, on the question whether the cost of repairs would exceed half the value of the vessel, evidence tending to show, that she would have been of less value after being repaired than she was before the injury, was held to be inadmissible. Ib.

4. (Abandonment-Sale by master.) If the injury sustained by a vessel insured is not of such a nature and extent as to warrant an abandonment, it is not such a case of necessity as will warrant a sale by the master. Ib.

5. (Vessel hono valued.) In determining whether the expenses of repairing an injury sustained by a vessel insured under a valued policy, will exceed half of her value, and thus constitute a technical total loss, the valuation of the vessel in the policy is conclusive as to her value. Ib.

6. (Loss, how calculated.) Where, in such case, the policy provided, that the insured should not have a right to abandon unless the loss exceeded half the amount insured, and the valuation

included the premium, it was held, that the loss must exceed one half of the whole valuation, including the premium, to authorize an abandonment.

Ib.

7. (Money raised at marine interest.) If it is necessary to raise money at marine interest for the purpose of repairing a vessel insured, the rule of deducting one third new for old, is to be applied to such interest, in determining the amount for which the insurers are liable. Ib.

8. (General average.) The vessel's proportion of items of general average is not to be added to the partial loss, in order to make up the loss of fifty per cent., which authorizes an abandonment. lb.

9. (Constructive total loss, how estimated.) In order to constitute a constructive total loss of a vessel insured under a valued policy, there must be a loss exceeding half the amount of the valuation without deducting the premium. Hall v. Ocean Ins. Co. 21 Pick. 472.

10. (Same.) In making the estimate of the loss in such case, in order to determine whether it exceeds half the amount insured, items which should properly be carried to the account of general average, are not to be included. 11. (Same.) So, expenses incurred in order to ascertain the extent of the loss, are not to be included. lb.

Ib.

12. (Same.) So, the wages and provisions of the officers and crew, while the ship is undergoing repairs, are not to be included in such estimates, as part of the particular average. But a reasonable allowance should be made for the custody of the vessel, if necessary, during such repairs, and for superintendence, which allowance should be charged to the account of labor; and from this charge the deduction of one third new for old, is to be made. Ib.

13. (Insurers liable for boat lost.) The insurers of a ship are liable for the loss of a boat from the stern davits, at sea, unless it is proved that the boat was improperly carried or slung in that situation; it being primâ facie covered by the policy. Ib. 14. (Evidence of disaster.) To render an insurer of goods liable

for damage done to them in the course of a voyage, it is necessary that some evidence should be given of such extraordinary disaster or injury in the course of the voyage, as would occasion damage in a seaworthy vessel. Flemming v. Marine Ins. Co., 4 Wharton, 59.

15. (Policy for whom it may concern.) Where a policy is for account of whom it may concern, although no express evidence is given on the trial that the person making the insurance had any authority from the owner of the goods to enter into the contract, yet the jury may presume an adoption and ratification of it by such owner, if it be for his benefit. Ib.

16. (Who may bring action.) Where a policy of insurance is executed, under seal, between the insurer of the one part, and a person named, "as well in his own name, as for and in the name and names of all and every other person and persons to whom the property insured does, may, or shall appertain," of the other part, an action of covenant cannot be maintained upon it in any other name than that of the person who was party to the deed. De Bollé v. Pennsylvania Ins. Co. 4 Wharton, 68. 17. (Who may claim the benefit of.) No one can claim the benefit of an insurance made by another for account of whom it may concern, without showing that it was the intention of the person obtaining the insurance to embrace his interest in the goods, at the time of the insurance; but it seems, that to render an insurance available to a party by adoption, it is not necessary that he should have adopted it before the loss happened. Ib. INTESTATE. (Advancement.) A debt from a child to a parent, which has been barred by the statute of limitations, cannot be converted by the parent into an advancement, by his declarations to that effect, without the assent of the child. Levering v. Rittenhouse, 4 Wharton, 130.

2. (Same.) A loan or payment by a father to or for a son, may be considered as a debt and not an advancement, although no security be taken for it. Where money is lent or paid in such case to or for a son, at the request of the latter, and an account is stated by the father and interest charged, such loan or payment is to be considered a debt and not an advancement. Ib.

JUDGMENT. (On demurrer, effect of.) A judgment on a general demurrer to the declaration, in favor of the defendant, not rendered on the merits, is not a bar to a subsequent suit between the same parties for the same cause of action. v. Gilmore, 21 Pick. 250.

Wilbur

LANDLORD AND TENANT. (Waste by tenant at will.) If a tenant at will commits waste, it is a determination of the will, and trespass quare clausum fregit may be maintained against him by the reversioner. Daniels v. Pond, 21 Pick. 367. 2. (Tenant at will not entitled to manure.) An outgoing tenant at will of a farm, has no right, in the absence of any express stipulation, to remove the manure made on the farm in the ordinary course of husbandry, and consisting of the collections from the stable and barn-yard, or of composts formed by the admixture of these with other substances taken from the farm; and if he sell such manure to be removed, and the vendee have notice of the title of the landlord, the sale vests no property in the vendee, and trespass will lie against him at the suit of the landlord, for taking the manure. But this rule does not apply to manure made in the livery stable, or in any manner not connected with agriculture or in a course of husbandry. Ib.

3. (Tenant keeping possession after expiration of the term.) Where a tenant remains in possession of the demised premises after the expiration of the term, without any new agreement, the presumption of law is, that he holds the premises subject to all such covenants contained in the original lease, as are applicable to his present situation. Phillips v. Monges, 4 Wharton, 226. LARCENY. (Shop of person accused of, may be broken by

officer.) Under a warrant in the usual form, on a complaint for larceny, the officer is authorized to break and enter the shop of the person accused, and seize the chattel alleged to have been stolen. Banks v. Farwell, 21 Pick. 156.

LEGACY. (To several.) A bequest of "one thousand dollars

to the children of —," creates an estate or interest, in joint tenancy, with the jus accrescendi, and where some of the lega

tees decease, after the death of the testator, before the recovery of the legacy, the interest vests in the survivors. Sparhawk and another v. Admr. of Buell and another, 9 Vermont, 41. LIBEL. (Truth, how shown in justification.) In a suit for libel, if the defendant justify, by showing the truth of the publication, he must plead that specially, particularly specifying those acts of which the plaintiff was guilty, that the court may see whether the defendant was justified in what he published. It is not sufficient in such case, to plead generally, that the words or matters contained in the alleged libel are true. Torrey v. Field, 10 Vermont, 353.

2. (Agreement to do an unlawful act.) A mere agreement between two, or more, to do an unlawful act, without any act done in furtherance of the common design, is not, ordinarily, an indictable offence. Ib.

LIEN. (On demands left with an attorney.) If an attorney re

ceive a demand for collection, and the debtor leave demands with the same attorney for collection, the avails to be applied on the first demand when realized, this creates no lien on the demands left by the second creditor, in favor of the first creditor, or of the attorney, for the security of the first debt. Goodrich v. Mott, 9 Vermont, 395. LIMITATIONS, STATUTE OF.

(Acknowledgment.) The

maker of a promissory note wrote a letter to the holder, saying, "next week I shall be able to send in to C. T. a statement of my affairs. He will show you the whole of my property and ask for a discharge. I should have done this before, but have been sick and been obliged to work for my board. I have large demands &c. but I cannot collect them and think I never shall." Held, that this letter was not an acknowledgment to take the note out of the statute of limitations. Bailey v. Crane, 21 Pick. 323.

2. (Note given by testator.) The statute of limitations is a bar to

an action on a promissory note, given by a testator in his lifetime, but not due until after his death, if no suit is brought against his executors until more than six years have elapsed