We are of the opinion that since the defendant in the application for the writ of error, when he moved *Page 491 his family from the insured premises, left a large portion of his furniture there, and placed a servant in a room of the house to occupy it, and since the servant stayed in the room and slept there until the house was destroyed by fire, the house did not become either vacant or unoccupied, within the meaning of the contract of insurance. The application is therefore refused. We think it unnecessary to pass upon the question of waiver.

Application refused.