the plea: Bakes v. Reese, 150 Pa. 44, 46. This has not been done. The first cause of demurrer cannot be sustained.

2. The fact that the award of the arbitrators is against "Lodge No. 945, Benevolent and Protective Order of Elks of Shenandoah, Pa.," and that the agreement of submission is executed by "Shenandoah Lodge No. 945, Benevolent and Protective Order of Elks of the United States of America" is the second cause of demurrer assigned. The plaintiff upon the argument filed the petition of the two arbitrators who made the award, with the court, alleging that the failure of the award to follow the submission in respect to the variance in the name as above stated was due to an inadvertence or to a clerical error made by the arbitrators, and praying for an order referring said award back to them for the correction of the said error. The award does not follow the submission, inasmuch as the award is against a party not named in the submission. This is doubtless due to an inadvertence or to a clerical error. The submission in this case is not under any statute or rule of court; it is a voluntary submission by agreement of the parties. In our opinion we are without authority to grant the prayer of the petitioners, and it is denied. The error in the award may probably be corrected by appropriate action on the part of the arbitrators: Robinson-Rea Co. v. Mellon, 139 Pa. 257; Hartley v. Henderson, 189 Pa. 277. The award in its present form will not sustain the action brought, because the award does not follow the submission. The second cause of demurrer must therefore be sustained.

3. The third cause of demurrer, that the plaintff's statement does not show that the submission to the arbirators who made the award was authorized by the defendant, is overruled. By its demurrer the defendant admits the execution of the agreement of submission, as is alleged by the plaintiff in paragraph two of his statement.

4. The objection that no copy of the contract in pursuance of which the agreement of submission was entered into is attached to the plaintiff's statement, as required by Section 5 of the "Practice Act, nineteen fifteen," cannot be sustained. Neither party was bound

by the terms of paragraph five of the original building contract: Yost v. Insurance Co., Appellant, 179 Pa. 381, until they had elected to be bound by the execution of the agreement of submission entered into July 3, 1917. The agreement of submsission does not provide any method for the enforcement of the award. The award

must therefore be enforced in a common law action. The cause of action in this case is founded upon the award and not upon the building contract: The Green & Coates Street Passenger Railway Co. v. Moore, 64 Pa. 79; Hamilton v. Hart, 125 Pa. 142; McCune v. Lyttle, 197 Pa. 404. The contract out of which the agreement of submission arose is not the basis of this action, and is therefore not required to be attachced to the plaintiff's statement.

It is clear that if the plaintiff fails in having the award corrected so as to conform with the submission, he may maintain his action upon the original building contract. For this reason the plaintiff is given an opportunity to amend, instead of entering judgment for the defendant upon the demurrer.

And now, February 24th, 1919, if the plaintiff shall file his amended statement within fifteen days from this date, in conformity with the views above set forth the defendant shall file its affidavit of defense to the averments of fact in said amended statement within fifteen days after service of the same upon it. If the plaintiff shall fail to file his amended statement within the time set forth, upon motion of the defendant the Prothonotary shall enter judgment for the defendant and against the plaintiff upon the demurrer.

CUNNINGHAM PIANO CO. v. QUINN.

Replevin-Bailment Contract-Affidavit of Defence-Military Service of Defendant.

Where in an action in replevin to recover a chattel on the ground of default in payment of rentals, the affidavit of defence alleges that the default fell due during the term of the defendant's military service, the court must under the Act of Congress of 8 March, 1918, Sec. 310, give a hearing to the parties to administer equitable relief, and the affidavit is therefore sufficient.

In the Court of Common Pleas of Delaware County. Sur rule for judgment for want of a sufficient affidavit of defence in No. 332 December Term, 1918.

A. A. Cochran, for Rule.

J. E. Walker, Contra.

Broomall, J., June 23, 1919. It appears by the plaintiff's Statement of Claim that on October 20, 1917, the plaintiff leased a piano to the defendant by a written lease for a term of thirty-two months, in consideration of the payment of ten dollars cash, and the payment of seven dollars per month on the twentieth day of each month thereafter, with the view to a purchase of the piano at the end of the term by the lessee upon the payment of seven dollars, reserving to the lessor the right to retake the piano if the rent should not be fully and promptly paid. The statement avers that on December 20, 1918, the defendant was in default in the payment of said rent to the amount of one hundred and eight dollars ($108.00), less seventy-five dollars ($75.00) paid and the plaintiff issued this writ of replevin on January 17, 1919, and the defendant gave a claim property bond and retained possession of the piano.

None of the averments of the affidavit of defence is sufficient to prevent judgment, unless it be that which pertains to the military service of the defendant. The affidavit avers that the defendant was in the military service of the United States from March 15, 1918, to December 19, 1918.

* of lease *

The Act of Congress of March 8, 1918, Section 301 (1) is "That no person who has received under a contract with a view to purchase of such property a deposit or instalment of the purchase price from a person who after the date of payment of such deposit or instalment, has entered military service, shall exercise any right or option under such contract to rescind or terminate the contract or resume possession of the property for non-payment of any instalment falling due during the period of such military service except by action in a court of competent jurisdiction."

(2) "Upon the hearing of such action the court may order the repayment of prior instalments or deposits or any part thereof, as a condition of terminating the contract and resuming possession of the property

or

it may make such other disposition of the case as may be equitable to conserve the interests of all parties."

It appears that the rent in default fell due during the term of the defendant's military service. Therefore under the Act of Congress the Court is called upon to give a hearing to the parties to administer equitable relief. This could not be done were we to grant this judgment asked for.

The rule for judgment is therefore discharged.

E. A. BELL CO. v. MONROE HOTEL CO.

Insurance-Fire-Mortgagee Clause-Premium-Neglect to

Pay-Covenant.

The stipulation in an insurance policy, "providing, that in case the mortgagor as owner shall neglect to pay any premium due under this policy, the mortagee (as trustee) shall on demand pay the same," is a covenant and not a condition. The mortgagee clause is a new contract of insurance between the insurer and the mortgagee.

In the Court of Common Pleas of Monroe County. No. 20 September Term, 1916. E. A. Bell Company, a Pennsylvania corporation, v. Monroe Hotel Company, a Pennsylvania corporation. Assumpsit. Rule for Judgment for Want of a Sufficient Affidavit of Defence. Rule Absolute.

F. B. Holmes, for Plaintiff.

J. H. R. Acker and A. Mitchell Palmer, for Defendant.

Shull, P. J., April 21, 1919. It is urged in defense in this case that that portion of the mortgage clause attached to the policies of insurance reading as follows: "Provided, that in case the mortgagor as owner shall neglect to pay any premum due under this policy the mortgagee (as trustee) shall on demand pay the same" is a condition and not a covenant and that, being a condition, defendant might elect to pay or not to pay, and the only result of electing not to pay would be that the policy became void. If we were to hold this position to be correct, as we view it, it would be of no avail to this defendant as a defense. The affidavit of defense in paragraph nine of the statement, admits that it included in its judgment, No. 44 September Term, 1915, the insurance

premiums due to plaintiff from White, the mortgagor. This we hold was such election as would bind the defendant in this case. This judgment was entered on a bond accompanying a mortgage and the insurance premiums were included by reason of the covenant in said mortgage providing for the including with the debt, such insurance premiums as may have been paid by mortgagee: Kiern v. Ainsworth, 95 Pa. 310, Omwake v. Harbaugh, 148 Pa. 278, Vetter's Appeal, 99 Pa. 52, Van Stanvoren's Appeal, 12 Atlantic 503; and under this principle would be liable to the defendant for the premiums on all policies bearing the standard mortgagee clause with loss payable to them. But is the cited portion of the standard mortgagee clause a condition and not a covenant?

If it is a condition, it must necessarily be a condition precedent or a condition subsequent.

A condition precedent is one in which the events upon which the condition is made to depend, must happen or be performed before the rights granted in the preceding portion of the clause can vest (2 Bl. Com.). From the provisions of this clause it cannot be a condition precedent. The events are (1) the neglect of the mortgagor to pay the premium, (2) demand on mortgagee for payment of premium, (3) payment by mortgagee. These being the facts, should we hold that it is a condition precedent, and should the mortgagee, without negligence, pay the premiums, the condition could never be performed by the mortgagee, it could never arise and consequently the rights promised to the mortgagee upon the performance of the condition could never vest, and therefore the mortgagee would be wholly deprived of any insurance protection through the fact that the mortgagor had paid the insurance premiums when they were due. If a condition at all, clearly it cannot be a condition precedent, for, if it were so held, the very act of the mortgagor, in doing that which he is obligated to do, would destroy the contract and deprive mortgagee of the very benefits the clause purports to give to him.

Is it a condition subsequent? If it is a condition subsequent then the rights and interests granted by the clause vest immediately upon the attaching of the rider and the execution and delivery of the policy, subject to being divested or defeated by the failure of the mort