shop remained in the building till the fire occurred, but its use as such had been abandoned about two days before the fire.

The Court read to the jury the first of the above covenants, and instructed them, in substance, that, although the tin shop remained there at the time of the fire, if it was not in use at that time it would not avoid the policy.

Verdict and judgment for the plaintiff. The defendant took this writ, assigning for error the charge of the Court as above given.

Edgar Cowan, for plaintiff in error. The two provisions in the policy are separate and distinct. One should not be made to blend with and qualify the other, which is absolute in its terms.

J. F. Wentling and H. D. Foster, contra. Whether the tin shop was in use at the time the fire occurred, and whether the fire was caused by the shop, was rightly submitted to the jury.

Girard Fire and Marine Ins. Co. v. Stephenson, I
Wr. 293.

The construction for which plaintiff in error contends, if adopted, would place the assured at all times at the mercy of his neighbors and adjoiners, who could at any time render void the policy between the assured and the company.

Is it true, as the counsel for plaintiff in error contends, "That, if the risk is increased against the provisions of the policy, it is no excuse that the fire did not happen in consequence of it"?

Mutual Fire Ins. Co. of Chester Co. v. Coatesville
Shoe Factory, 30 P. F. Smith, pp. 407 and 412.

Nov. 11, 1878. THE COURT. One of the conditions of the policy provided, that, "If the

provision which declares such increase shall annul the policy, the assurer is absolved from the contract. This rule was enforced in Diehl v. Adams County Mut. Fire Ins. Co. (8 P. F. Smith, 443). It is settled by numerous decisions, and operates though the fire was not caused by the increased risk.

A contract for insurance is no more subject to modification or change by one party without the other's consent, than any other agreement. The parties stipulate for a particular hazard at a given rate. If one increases the hazard he takes it out of the terms of the contract. He creates a risk against which the other did not undertake to insure, perhaps would not for any consideration, and certainly would not at the same rate.

There is not much conflict in the testimony nor difficulty about the facts. For a considerable time before the fire the premises were occupied for a tin shop. For that cause the plaintiff paid additional sums for insurance to other companies. The shop was there at the time of the fire. It was error to submit the question, "Was it used at or immediately before the fire?" The jury should have been instructed that if the plaintiff knowingly increased the risk, or permitted it to be done, although no work had been done in the shop for a few days, he could not recover. Judgment reversed and venire facias de novo awarded.

Opinion by TRUNKEY, J.
WOODWARD, JJ., absent.

risk shall be increased by any means whatever Oct. & Nov. '78, 107.

with the knowledge of the assured, during the continuance of the insurance, and notice thereof

SHARSWOOD and

Oct. 9, 1878.

Kleber et al. v. Ward et al.

bility of property of stranger to.

The property of a stranger found upon demised premises, tection as a matter of public policy, is liable to distress for left for no purpose of trade or other purpose requiring pro

rent.

A piano, leased to the tenant's wife for her private use, was distrained for rent, prior to the passage of the Act of May 13, 1876 (P. L. 171); upon replevin by the owner: Held, that it was liable for such distress.

be not given to the company, and such increased Landlord and tenant-Distress for rent-Liarisk be allowed and endorsed thereon, this policy shall be of no force." Here is an express covenant that if the insured knowingly increased the risk without the consent of the assurer the policy shall be invalid. In this the case differs from the Mutual Fire Ins. Co. v. Coatesville Shoe Factory (30 P. F. Smith, 407). There the defence was made on the ground that gasoline had been used for lighting the building though such use had ceased before the fire. The Court expressly based the ruling on the fact that there was no provision in the policy, which made it void for a temporary increased risk in the mode of lighting. And, referring to a stipulation that if the insured engaged in a more hazardous business the policy should be void, said: "If a means of lighting the building in which the business of the assured is carried on can be deemed the business itself, then the rule covers the case and the policy is avoided." That case distinctly recognizes the principle that, if the risk be increased against a

Error to the Common Pleas No. 1, of Allegheny County.

Replevin, by H. Kleber & Bro. against William Ward and another, for a piano, piano-stool, and cover, distrained by the defendants for rent due by one J. H. Smith.

At the trial, before BAILEY, J., it appeared that the plaintiffs had leased the property in dispute to Smith's wife, for her private use, with the privilege of purchasing at a certain price, in which case the sums paid as rent were to be

credited on account. The rent accrued, and the distress was levied, prior to the passage of the Act of May 13, 1876, relating to the exemption of pianos, etc. upon notice given, etc.

The defendants requested the Court to charge the jury (1) that, if the property in dispute was found upon the demised premises, it was liable to distress for rent; and that the plaintiffs were not entitled to recover even if they owned it and had rented it to Mrs. Smith as claimed. Affirmed.

Verdict and judgment for defendants for $478.10, whereupon the plaintiffs took this writ, assigning for error, inter alia, the affirmance of the defendant's first point.

A. M. Brown, for the plaintiff in error.

The bailment to Mrs. Smith was a reasonable, customary, and legal business transaction, clearly consistent with public policy, and in the interest of trade and business. The property in dispute was, therefore, upon both principle and authority, exempt from distress for rent.

Brown et al. v. Sims et al., 17 S. & R. 138.
Briggs et al. v. Large, 6 Casey, 287.
Riddle v. Welden, 5 Wharton, 9.
Karns et al. v. McKinney, 24 Sm. 387.
Cadwalader v. Tindall, 8 Harris, 422.
Bruce (Negley with him), contra.
The property in dispute was, with other furni-
ture of the tenant, distrained upon the demised
premises, a dwelling-house; and if the law were as
claimed by the plaintiffs, a tenant might, by leas-
ing or borrowing all his household furniture, prac-
tically defeat the landlord's right of distress.
The tenant did not receive it in the course of his
business as a means of making a livelihood; he
did not receive anything from the plaintiffs, but
on the contrary, they were paid for its use, and
therefore it does not come within the exceptions
to the common law rule.

Price v. McCallister, 3 Grant, 248.
Cadwalader v. Tindall, 8 Harris, 422.

Fidelity Ins. Co. v. Clendenon. Execution-Sheriff's sale under a mortgageQuare, whether the provision of 4 of the Act of 1705, requiring notice of time and place of sale to be given to the defendant, can be invoked by the terre-tenant-Where the terretenant has suffered no injury, he cannot complain that such notice was not given to the mortgagor.

Rule to set aside sheriff's sale.

Sci. fa. sur mortgage. The sale was made under a levari. The terre-tenant obtained the rule and the depositions showed that the price. realized at the sale was somewhat below the market value of the property, and that the only notice of the sale received by the defendant, the mortgagor, was a casual observation from a friend on meeting him in the street shortly previous

thereto.

O. P. Cornman, for the rule.

The Act of 1705, relating to sheriff's sales in proceedings under mortgages, provides that a written notice shall be given to the defendant by the sheriff at least ten days before the sale, informing him of the time and place thereof. And the Courts have so far enforced this provision as to require that the notice shall, at least, be official.

Purd. Dig. 484, % 122 n. (a).

Topper v. Taylor, 6 S. & R. 173.

Passmore v. Gordon, 1 P. A. Brown, 320.

1 Tr. & H. Pr. 995.

This notice is also required by the Act of 1836.

Purd. Dig. 650, 8 76.

A. T. Freedley, contra.

Oct. 14, 1878. THE COURT. The piano in this case was simply the property of a stranger found on the demised premises, left for no purpose of trade The testimony as to the inadequacy of price or other purpose requiring protection as a matter is conflicting. The Act of 1836 (supra) relates of public policy. It did not belong to or further only to the writ of vend. exp. The notice rethe business of J. H. Smith, but was simply quired by the Act of 1705 is never observed in leased to his wife at a rental for her private bene-practice, and it has been decided that it is not fit. The fact that the Act of Assembly of 13th May, 1876, was passed to exempt pianos, melodeons, and organs from levy and sale in such a case, is a legislative interpretation of the law as it stood before. We see no error. Judgment affirmed.

PER CURIAM.

necessary.
1 Tr. & H. Pr. 1143.

At any rate the terre-tenant cannot object to insufficiency of notice to the defendant.

C. A. V.

Sept. 19, 1878. THE COURT. The applica tion to set aside the sale in this case is not made by the defendant, the mortgagor, though the ground of it is that the notice of the time and place of sale required by the Act of 1705 was not given to him. It may be that the mortgagor and owner, who sells subject to a mortgage, entitled to claim the notice provided for in the

is

Act, but this right is not invoked by him, and he | perty; and this, we think, would be pressing admits that he had actual though unofficial notice him, in the sense in which the term was intended of the sale. As no injury appears to have been to be used by the parties to the alleged agreedone to this applicant, even if he were entitled ment. to notice under the Act, which it is not necessary now to decide, this rule is discharged. Oral opinion by PEIRCE, J.

Rule discharged.

Oral opinion by BIDDLE, J.

Commonwealth v. Weart. Administration of the estate of an intestate without heirs-Escheat.

Rule to set aside fi. fa.

Affidavit of defence-Promissory note-Bringing suit against an endorsee and obtaining judgment, is a violation of an agreement "not to twentieth of July, 1878, intestate, leaving perElizabeth J. Hale died in this city on the press the endorsee for payment until all reme-sonal estate in this county. On July 30, 1878, dies against the maker are exhausted." Rule for judgment for want of a sufficient affi

davit of defence.

Assumpsit on a promissory note, by holder against payee, who endorsed it in blank.

letters of administration were granted to George
W. Weart, security duly entered and the personal
estate of the decedent taken possession of by the
adminstrator. On information made that dece
dent had died intestate and without any known
heirs or kindred an inquisition was held, and on
October 25th the report of the inquisition was
filed finding the facts as stated by the informant,
and on the same day a writ of fi. fa. was issued,
levying on the personal property of the decedent
in the hands of the administrator.
F. S. Simpson, for the rule.

The affidavit of defence set forth that the note was given to secure a debt of the maker for $10,000, who, at the time the note was drawn, also gave plaintiff his bond for $10,000, secured by a mortgage upon his property; after the note became due, and was unpaid, plaintiff having intimated that he should press defendant for payment, the latter assigned to plantiff two bonds The letters of administration still standing the and mortgages for $1500 each, as additional col-administrator is entitled to a year in which to lateral security, in consideration of which assign-settle the estate.

J. A. Reed, contra.

ment plaintiff agreed with defendant that he Crawford v. Commonwealth, 1 Watts, 486.
would "exhaust all his remedies against the
maker before he would press defendant for pay-
ment of this money."

W. H. Drayton, for the rule. To seek to secure the debt by obtaining a judgment on the note is not pressing defendant for payment of the money. To press a debtor means to distress him, by endeavoring to enforce satisfaction of a debt which he is unwilling or unable to pay. When plaintiff issues execution upon the judgment asked for, then the agreement not to press defendant may be urged in support of a rule to stay the

writ.

The payment of part of a debt is not a consideration which will support a promise to forbear to sue for the balance.

Pabodie v. King, 12 Johns. (N. Y.) 426. E. C. Mitchell, contra. When plaintiff has sued out the mortgage of the original debtor, and exhausted all his remedies against him, he may bring suit against this defendant, but not before.

THE COURT. By obtaining a judgment against a business man, you injure his credit, and subject him to the inconvenience of a lien upon his pro

The Act of Assembly provides for an immediate seizure by the Commonwealth on the finding of the inquisition, which must be traversed if disputed.

Purdon's Digest, tit. Escheat.

It has never been decided in Pennsylvania that the administrator has a year in which to settle the estate. It has been frequently assumed but there is no decision to that effect.

This Court has no jurisdiction and cannot interfere with an inquest of escheat except upon a

traverse.

C. A. V.

Nov. 16, 1878. THE COURT. The administrator is in the legal custody of the goods and chattels of the decedent, for purposes of distribution. It is for the protection of creditors as well as others that the law appoints an officer for this purpose. The Commonwealth is in no other or better position than any other claimant or distributee. The administrator having been appointed before the inquest, the Commonwealth must assert its title in the same manner as any other heir or next of kin, by a citation to the ad

ministrator to file an account in the Orphans' | of the within writ, on a conspicuous part of the Court.

November 2, 1878. THE COURT. While a vendor of real estate is bound to convey to his vendee a good and marketable title, yet if the title be complete, it is the well established custom and usage in Philadelphia, that he is not liable for any of the expenses of the transfer. Nor October 15, 1878. is it his duty to furnish the vendee with a brief or Frowert's Estate. abstract of title, in the absence of any agreement Petition for specific performance-Conveyance of to that effect. (Whitaker v. Williams, 7 Legal real estate-Vendor not liable for expenses of and Insur. Rep. 14.) -Nor to furnish brief of title-Custom of To enable a vendor to recover the purchase conveyancers in Philadelphia-Tender of deed money, it is only necessary to tender a deed, not sufficient to enable vendor to recover purchase the whole chain of title; the burden of proving money-Burden of proving defective title is the title to be defective is on the purchaser. upon purchaser-Vendor must supply missing (Espy v. Anderson, 2 Har. 308.) links in title at his own expense-But remuneration for so doing cannot be claimed against vendor by conveyancer of purchaser without previous agreement.