Porter v. Etna Ins. Co. Porter? If the company insured to Porter the entire interest in this hotel property, it insured to him an interest which he did not own in the present condition of the case. The nature of Porter's interest should have been communicated to the company; if it was not, the contract of indemnity should not be held valid. And while it may be true that naked possession, so far as it gives an interest, is an absolute interest, still we are of opinion that Porter did not own the property or interest which was insured, according to the testimony of this case. He had, at best, a nominal interest. If a party who has a mere possession is answerable over to the party who is entitled to the rightful possession of the property, in case the building upon the property should be destroyed by fire, then it might be said that the party who has the mere possession has an insurable interest to the extent of the value of the property; but such is not the law. Porter, if he was a mere trespasser or disseizor of that property, and it should burn while it was in his possession, unless it was by his fault or negligence or by some act of his, would not be responsible for the value of the building, and therefore could not be said to have an insurable interest to the extent of the value of the property. His insurable interest, then, was merely the nominal possessory interest, which was liable to be defeated at any moment. The insurance is but a contract of indemnity; the indemnity can go no further than the interest of the party who is indemnified, and if that interest is partial and not entire, the indemnity does not cover a value incident to ownership. We think as the case stands there was neither legal nor equitable ownership in Porter of this hotel property, to the extent which he was represented to have, or to the extent which is insured, to-wit: "His three-story brick hotel build Sanford v. The Town of Portsmouth. ing." He was not the owner of the entire property, or of any part or interest in it, save a mere naked possession, and that was not such an interest as was insured. If there is no different phase to this case to be shown by further evidence, we hold that the plaintiff cannot recover. HORATIO W. SANFORD vs. THE TOWN OF PORTSMOUTH. CIRCUIT COURT-EASTERN DISTRICT OF MICHIGAN-NOVEMBER 26, 1877 FEDERAL AND STATE PRACTICE. 1. Section 914, R. S., which adopts the practice, pleadings, forms and modes of procedure of the State courts, applies only to such as are established by the statutes of the several States, and not to modes of procedure established by judicial construction of common law remedies. 2. The Federal courts are not bound by the decision of the Supreme Court of a State, which decides that mandamus is the only proper remedy upon municipal bonds. 3. Quare, whether this section extends to the practice prescribed by rules of the State courts of general application. On demurrer to a plea to the jurisdiction. Action of assumpsit upon certain interest warrants or coupons annexed to bonds issued by the town of Portsmouth to aid in the construction of a plank road. Defendant pleaded to the jurisdiction upon the ground that assumpsit would not lie, insisting that mandamus was the only proper remedy. Plaintiff demurred. Sanford v. The Town of Portsmouth. Atkinson, for plaintiff. Freeman, for defendant. BROWN, J.-As the point was not raised by counsel it is not necessary here to decide, whether a plea to the jurisdiction is a proper mode of taking advantage of a defect apparent upon the face of the declaration, where the form of the remedy only is in question. That assumpsit is a proper action upon securities of this kind is settled, at least so far as the Federal courts are concerned, in The Town of Queensbury v. Culver, 19 Wall. 83, 92; see, also, Heine v. Levee Commissioners, ibid. 655, 657. While the question has not been directly decided elsewhere, there is a multitude of cases in the recent volumes of the Supreme Court reports, where assumpsit or debt has been brought upon municipal obligations of this description, in which the court has impliedly recognized these actions as the proper remedy. It is equally well settled that a writ of mandamus will not lie in such cases in the Federal courts until after judgment has been obtained. The Circuit Courts have no power to issue a writ of mandamus by way of original proceeding, where such writ is neither necessary nor ancillary to the jurisdiction already acquired. Bath County v. Amy, 13 Wall. 244. Further discussion of these propositions is concluded by the opinions above cited. It is insisted, however, that under the practice of this State, as established by the Supreme Court, assumpsit will not lie, and that under the act of 1872 adopting "the practice, pleadings, forms and modes of proceeding" of the State Courts, this construction is obligatory upon this court. The Supreme Court of this State seem to have adopted the view that mandamus is the only proper remedy where the liability of the corporation is fixed or the amount of the debt liquidated Sanford v. The Town of Portsmouth. and adjusted. This question was first directly passed upon in Marathon v. Oregon, 8 Mich. 372, in which, after a division of a township, the town boards met and determined the amount of indebtedness to be paid by the new township. It was held by a majority of the court that the amount being a fixed and liquidated demand against the new township, which it was the duty of its town board to allow, mandamus was a proper remedy in an action against the township to recover the amount of the demand. The decision was put partly, at least, upon the ground that by law no execution can be issued against a township, and that as a judgment would be useless, the amount of the debt being already ascertained, a town ought not to be put to the useless expense of a judgment by default of its officers, and the creditor ought not to be put to delay or a double pursuit. There was a strong dissenting opinion in this case by Mr. Justice CHRISTIANCY. In The Township of Dayton v. Rounds, 27 Mich. 82, the same principle was extended to bonds authorizing the payment of bounties to volunteers, and it was stated to be the settled practice of the State that a remedy by action was improper in such a case. It was again affirmed in the case of McArthur v. The Township of Duncan, 34 Mich. 27, in which mandamus was held to be the only proper remedy to enforce the payment of orders regularly drawn by the highway commissioners on the township treasurer, the duty of the township authorities to raise the necessary funds and to make payment, being just as necessary upon the presentation of such orders as it would be after judginent. Assuming that the Supreme Court would adhere to this principle if the question arose upon coupons of this character, it only remains to consider whether such construction falls within the scope of the act of 1872 as a "practice or mode of proceeding," existing in the courts of record of this State, Sanford v. The Town of Portsmouth. within the meaning of this act. I am clearly of the opinion it does not, for the following reasons: 1. I think the practice, pleadings, and forms and modes of proceeding in civil causes, mentioned in sec. 914, are confined to those established by the statutes of the State, and do not include modes of procedure established by judicial construction of common law remedies. Whenever general principles of law are involved, the Federal Courts may exercise an independent judgment. By the judiciary act of 1789, Revised Statutes, sec. 721, "the laws of the several States shall be regarded as rules of decision in trials at common law in the courts of the United States;" but it has never been held in construing this section that the judicial decisions of the several States upon questions of general law were obligatory upon the Federal Courts. * * * We are bound by the constitutions and laws of the several States, and by the construction given to such constitutions and laws by the courts of the State. It has also been held that we are bound by decisions of the State Courts so far as they establish rules of law affecting the title to lands, or principles. which have become a settled rule of property, but no farther. Swift v. Tyson, 16 Pet. 1; Boyce v. Tabb, 18 Wall. 546; Delmas v. Insurance Co., 14 Wall. 661; Lane v. Vick, 3 How. 464. We had occasion to apply this construction at the last term of this court, where the question arose as to the liability of a city for injuries received from a defective sidewalk. We then held the municipality liable, following the decisions of the Supreme Court, although the Supreme Court of the State had held that such liability did not exist. The Supreme Court of the United States also held, in numerous early cases, that sec. 721, above quoted, did not extend to the procedure or practice of the Federal Courts. Robinson v. Campbell, 3 Wheat. 212; Wayman v. Southard, |