Page:Federal Reporter, 1st Series, Volume 1.djvu/81

 FBIEMANSDORI' V. WATEKTOWN INS. 00. 73 �gagee, and if there is really no such diminution there is no right of action, because he has sustained no loss. And there beingno rule in the federal courts upon that subject, and this court having the right to assume and adopt such rule as it oonsiders the most consonant with equity and justice, under the circumstances — having the right in a case of conilict between the state authorities to adopt that which seems to be the most consonant w'Àh justice — I think that the reasoning of the court in the case of the Insurance Company v. Royal, reported in 65 N. Y., is the most satisfactory. There it is held that the only purpose of the poliey is to prevent a dimi- nution or impairment of the mortgagee's interest in the property — its capacity to pay the mortgagee's debt; if that remains unimpaired, if the property is as good or is made as good after the fire as it was before, by reason of some other person's reparation of the property, that there is no right of action. �In this case the demurrer will be carried back, of course, under the pleadings and form of the suit, to the declaration, and the demurrer will be sustained to the declaration. �I have already intimated that I do not know what course counsel will feel disposed to take, but it seems to me that there is very little use in amending the declaration if the fact exists that is stated in the pleas. �Mr. Hoyne : I would like to have time to consider whether I will amend or not. �The Court : Demurrer carried back to the declaration, and plaintiff has ten days to eieot whether he will stand by bis demurrer or not. ��� �