Conn. 282; Ralph v. Brown, 3 Watts & S. 395; Gordon v. Tweedy, 74 Ala. 232. The broad doctrine in stated in these authorities that, if books or papers necessary as evidence in a court in one State be in the possession of a person living in another State, secondary evidence, without further showing, may be given to prove the contents of such papers. As we have already said, in effect, each case must largely depend on its own particular circumstances as to what showing is sufficient in order to admit secondary evidence of the contents of a writing, and the language used in the cases above cited must be interpreted in the light of the facts of each case. None of these cases go so far as to hold that where a defendant relies upon the contents of a writing to exempt himself from liability, and both the execution and contents of the supposed writing are denied, and the alleged writing is shown to be in the possession of a person outside of the State, secondary evidence of the contents of such writing is admissible unless an effort is made to produce it. And, besides, the doctrine stated in these authorities is denied by authorities of equal weight, and even by some of the same courts. Thus, in Turner v. Yates, 16 How. 14, it was held that proof that an invoice of goods was in London was not a sufficient showing to admit secondary evidence of its contents, in the circuit court of the United States for the district of Maryland, the court saying: "If the paper was in the hands of the consignees in London, secondary evidence was not admissible; if as parties, they were entitled to notice to produce the paper; if as third persons, their depositions should have been taken, or some proper attempt made to obtain it." To the same effect are Hoyt v. McNeil, 13 Minn. 394, (Gil. 362); Dickinson v. Breeden, 25 Ill. 186; McGregor v. Montgomery, 4 Pa. St. 237; Whart. Ev. § 130.

CONSPIRACY COMBINATION IN TRADE INTERFERENCE WITH BUSINESS- DAMAGES.The question presented in Delz v. Winfree, 16 S. W. Rep. 111, decided by the Supreme Court of Texas, is of novel interest. It is there held that no action for conspiracy will lie by a butcher against several dealers in beef cattle because they have combined to refuse to sell him beeves; but where defendants also induced a certain dealer in slaughtered meat to likewise refuse to sell him, such interference with his business is a cause of action. Henry, J., says:

The appellee contends that, at common law, "a conspiracy cannot be made the subject of a civil action, although damages result, unless something is done which, without the conspiracy, would give a right of action. In other words, an act, which, if done by one alone, constitutes no ground of action, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several. That the true test as to whether such action will lie is whether or not the act accomplished after the conspiracy has been formed is itself actionable." We think that the proposition here asserted is well sustained by the authorities, and the first question to be determined is whether, on account of the acts charged by plaintiff against the defendants, he would have had a cause of action against either of them if no conspiracy had been charged. If he would have had,

then he may maintain his action for conspiracy. If he could not have sustained a separate action against either of the defendants on account of the matters complained of, the additional charge of a conspiracy will not give it. Cooley, Torts, 125; Kimball v. Harman, 34 Md. 407; Laverty v. Vanarsdale, 65 Pa. St. 507.

The appellee also asserts the following proposition, which may be conceded to be correct: "A person has an absolute right to refuse to have business relations with any person whomsoever, whether the refusal is based upon reason, or is the result of whim, caprice, prejudice or malice, and there is no law which forces a man to part with his title to his property." The privilege here asserted must be limited, however, to the individual action of the party who asserts the right. It is not equally true that one person may from such motives influence another person to do the same thing. If, without such motive, the cause of one person's interference with the property or privileges of another is to serve some legitimate right or interest of his own, he may do acts himself, or cause other persons to do them, that injuriously affect a third party, so long as no definite legal right of such third party is violated. In the case of Walker v. Cronin, 107 Mass. 562, it was recognized to be a general principle that, "in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the case to be repaired in damages. The intentional causing of such loss to another, without justifiable cause, and with malicious purpose to inflict it, is of itself a wrong." "There are, indeed, many authorities which appear to hold that, to constitute an actionable wrong, there must be a violation of some definite legal right to the plaintiff. But those are cases, for the most part, at least, where the defendants were themselves acting in the lawful exercise of some distinct right, which furnished the defense of a justifiable cause for their acts, except so far as they were in violation of a superior right in another." "Thus every one has an equal right to employ workmen in his business or service; and if by the exercise of this right, in such manner as he may see fit, persons are induced to leave their employment elsewhere, no wrong is done to him whose employment they leave, unless a contract exists by which such other person has a legal right to the further continuance of their services. If such a contract exists, one who knowingly and intentionally procures it to be violated may be held liable for the wrong, although he did it for the purpose of promoting his own business." "Every one has a right to enjoy the fruits and advantages of his own enterprise, industry, skill, and credit. He has no right to be protected against competition, but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right, by contract or otherwise, is interfered with. But if it come from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing." Plaintiff's petition goes further than to charge that each of the defendants refused to sell to him. It charges that they not only did that, but that they induced a third person to refuse to sell to him. It does not appear from the petition that their interference with the business of plaintiff was done to serve some legitimate purpose of their own, but that it was done wantonly and maliciously, and that it caused, as they intended it should, pecuniary

MENT OF FUND.-The authorities upon the question decided by the Supreme Court of Ohio, in Covert v. Rhodes, 27 N. E. Rep. 94, are more or less in conflict. It is there held that a bank check or draft for a part of the sum due the drawer does not, before acceptance by the drawee, constitute an equitable assignment of the amount for which it is drawn. When, after the drawing of such check or draft, the drawer makes an assignment of all his property for the benefit of creditors, and notice of the assignment is received by the drawee before the check or draft is presented for acceptance or payment, the title to the whole amount standing to the credit of the drawer at the time of the assignment passes to the assignee for the equal benefit of all the creditors. The holder of the check or draft is not entitled to priority over the other creditors. Williams, J., after calling attention to the conflict of authority and citing Pomeroy on Equity Jur. § 1284, and Mr. Justice Davis in Bank v. Millard, 10 Wall, 152. says:

The subject has been discussed in all its bearings in the various reported cases, and, without extending the discussion, our conclusion is that a check or draft for a part only of the sum due the drawer does not, before acceptance, constitute an equitable assignment of the amount for which it is drawn; and where, after it is drawn, the drawer makes an assignment of all his property for the benefit of creditors, notice of which is received by the drawee before acceptance, the property in the whole amount then remaining to the credit of the drawer passes to the assignee, for the equal benefit of all the creditors, and the holder of the check or draft has no priority over the other creditors. We concur with Mr. Justice Miller, in his opinion in the case of Bank v. Schuler, 120 U. S. 515, 516, 7 Sup. Ct. Rep. 644, that "it is not easy to see any valid reason why the assignment of an insolvent debtor for the equal benefit of all his creditors, and all his property, does not confer on those creditors an equity equal to that of the holder of an unpaid check upon his bankers. The holder of this check comes into the distribution of the funds in the hands of the assignee for his share of those funds with other creditors. The mere fact that he had received a check a few days before the making of the assignment, on the bank, which had not been presented until after the general assignment was made and notified to the bank, does not seem, in and of itself, to give any such superiority of right. The assignment was complete and perfect, and vested in the assignee the right to all the property of the assignor immediately upon its execution and delivery, with due formalities, to the assignee, and the check of this assignee * * * could have been paid by the bank with safety, if first presented.

The check given by the same assignor a few days before was only an acknowledgment of a debt by that assignor, and became no valid claim upon the fund against which it was drawn until the holder of those funds was notified of its existence. This, we think, is the fair result of the authorities on that subject." Among the many cases which sustain this view, the following are directly in point; Grammel v. Carmer, 55 Mich. 201, 21 N. W. Rep. 418; Dickenson v. Coates, 79 Mo. 250; Bullard v. Randall, 1 Gray, 605; Attorney General v. Insurance Co., 71 N. Y. 325; Kimball v. Donald, 20 Mo. 577; Loyd v. McCaffrey, 46 Pa. St. 410; Chapman v. White, 6 N. Y. 412; Dykers v. Bank, 11 Paige, 612; Hopkinson v. Forster, L. R. 19 Eq. 74; Moses v. Bank, 34 Md. 574.

While, however, we regard it as well settled that a draft or check for a part only of the draweer's deposit,or sum due him, does not operate as an equitable assignment, a different rule seems to obtain where an order, draft, or check is drawn for the whole amount of the deposit, or the exact sum due. There may be, in such case, it is said, a sufficient designation of the specific fund to be transferred, to constitute an equitable assignment. This distinction is made by many wellconsidered cases, among them Moore v. Davis, 57 Mich. 251, 23 N. W. Rep. 800; Bank v. Railway Co., 52 Iowa, 378-384, 3 N. W. Rep. 395; Mandeville v. Welch, 5 Wheat. 277; Kingman v. Perkins, 105 Mass. 111; Macomber v. Doane, 2 Allen, 541; Robbins v. Bacon, 3 Me. 346; Gibson v. Cook, 20 Pick. 15-17. In the opinion of the court in Moore v. Davis, supra, Cooley, C. J., discussing the distinction between the two classes of cases, says: "In the recent case of Grammel v. Carmer, 55 Mich. 201, 21 N. W. Rep. 418, the question whether a draft was an assignment of the fund in the drawee's hands, to the extent of the sum drawn for, was considered and decided in the negative. That, however, was the case of a banker's draft, and it was not drawn for the whole fund in the drawee's hands. Many cases were cited in the opinion filed in that case, and the following, not then cited are to the same effect: Shand v. DuBuisson, L. R. 18 Eq. 283; Lewis v. Bank, 30 Minn. 134, 14 N. W. Rep. 587; Jones v. Wood, etc. Co., 13 Nev. 359; Rosenthal v. Bank, 17 Blatchf. 318; Dolsen v. Brown, 13 La. Ann. 551; Sands v. Matthews, 27 Ala. 399. But this case differs from Grammel v. Carmer, in the fact that the draft now in question was drawn for the exact amount of a sum claimed to be due from the drawees to the drawer for a bill of merchandise, and that the account was attached to the draft, evidently for the purpose of being sent forward with it. When thus sent forward, it would explain to the drawees the account on which it was drawn; but it must also have been understood to serve a further purpose, namely, to be evidence in the hands of the drawees that the account was paid when the draft was taken up by them. There could be no sufficient reason for attaching it at all, unless it was understood that payment of the draft would be payment of the account as well. By the general commercial law, as was said in Grammel v. Carmer, the purchaser of a draft is supposed to take it in reliance upon the responsibility of the drawer, and he has no other reliance until it is accepted. This is the general rule. But if the draft is for the whole amount of a fund, the draft may, in connection with other circumstances, tend to show an intent that should operate an assignment." Gardner v. Bank, 39 Ohio St. 600, belongs to this latter class of cases.

EFFECT OF OTHER OR DOUBLE INSURANCE UPON MORTGAGEE'S INSURANCE.

1. Both Mortgagor and Mortgagee may Insure the Property Mortgaged.

2. Rule Extends to any one holding a Specific Lien. 3. Other Instances.

4. Other or Double Insurance.

5. A Mortgagor or Mortgagee cannot be compelled to pro rate with others.

6. "Union Mortgage Clause."

1. Both Mortgagor and Mortgagee May Insure the Property Mortgaged.-It is no longer doubted that a mortgagor may insure the property mortgaged in his own behalf, although he may have nothing more than a right in equity to redeem, even though such right has been sold on execution, the year or time for redeeming not having expired.1 He may insure to the full value of the property mortgaged, and recover the amount insured if he has a right to redeem at the time of the loss.2 This right continues after the owner of land has conveyed his title by a deed absolute on its face, if such conveyance was intended as a mortgage. So a mortgagor of personal property may insure it in his own behalf. So

3

the mortgagee may insure the mortgaged

5

premises to the amount of his debt, and different mortgagees of the same property have such independent interests that each may insure the property mortgaged to the extent of his debt. An executory contract by a mortgagee to convey or assign his interest in a mortgage, does not deprive him of the right to insure, nor limit his right to recovery to the amount of the unpaid purchase money." But if the debt of the mortgagee has been extinguished or he has transferred it before the loss, he cannot recover the amount of the insurance; though it would be different if a

1 Strong v. Manufacture Ins. Co., 10 Pick. 40; s. C., 20 Am. Dec. 507; Insurance Co. v. Stinson, 103 U. S. 25; Mechler v. Phoenix Ins. Co., 38 Wis. 665; Creighton v. Homestead Ins. Co., 17 Hun, 78; Walsh v. Philadelphia Fire Assn. 127 Mass. 383.

2 Id.

3 Hodges v. Tennessee F. & M. Ins. Co., 8 N. Y. 416. 4 Kronk v. Birmingham Fire Ins. Co., 9 Ins. L. J. 26; s. c., 10 Pitts. L. J. (N. S.) 55; 37 Leg. Int. 195; 91 Pa. St. 300.

5 Trader's Ins. Co. v. Robert, 9 Wend. 404; Foster v. Van Reed, 70 N. Y. 19; Haley v. Manf. Ins. Co., 120 Mass. 292; Fox v. Phoenix Ins. Co., 52 Me. 333; Kellar v. Merchant's Ins. Co., 7 La. Ann. 29; Insurance Co. v. Woodruff, 2 Dutch. 541.

6 Fox v. Phoenix Ins. Co., 52 Me. 333.

7 Haley v. Manf. Ins. Co., 120 Mass. 292.

8 Carpenter v. Washington Ins. Co., 16 Pet. 495.

a mortgagor's insurable interest is not divested by an unauthorized foreclosure sale and confirmation which is afterwards set aside, even though the loss occur after the confirmation and before it is vacated. 10 But he cannot insure after the period of redemption has expired."

2. Rule Extends to Anyone Holding a Specific Lien.-The same rule applicable to mortgagors and mortgagees is applicable to any persons who are the owners of property and to those who have specific liens thereon, such as a mechanic's lien,12 but not to a general judgment lien. 18

3. Other Instances.-So a like rule prevails with reference to vendor and vendee ;14 lessor and lessee;15 consignor and consignee ;16 bailor and bailee, and pledgeor and pledgee.18

17

4. Other or Double Insurance-Pro Rating. -In the case of insurance by two or more persons of the same property, a very material question arises whether a pro rating of insurance can be insisted upon. Thus, suppose the mortgagor insured, and in his policy it is provided that if any other insurance is

placed thereon the insurer shall not be liable for a greater proportion of any loss sustained by the insured upon the property insured, than the sum insured bears to the whole sum insured thereon. It may be said generally that this is not "other" or "double" insurance. Nearly all policies provide that if there be any other insurance upon the property insured of which no notice is given to the then insurer, or if any shall be placed upon the property insured at any time thereafter without the consent of the then insurer, the policy then

9 Insurance Co. v. Woodruff, 2 Dutch. 541. 10 Insurance Co. v. Sampson, 38 Ohio, 672. 11 Essex Savings Bank v. Meriden Ins. Co., 57 Conn. 335.

12 Carter v. Humboldt Fire Ins. Co., 12 Iowa, 287; Stout v. City Fire Ins. Co., 12 Ia. 371; Longhurst v. Star Ins. Co., 19 Ia. 364; Protection Ins. Co. v. Hall, 15 B. Mon. 411.

13 Grevemeyer v. Southern Mut. Ins. Co., 62 Pa. St. 340.

14 Ramsey v. Phoenix Ins. Co., 1 Fed. Rep. 396; Southern Ins. Co. v. Lewis, 42 Ga. 587; Tuckerman v. Home Ins. Co., 9 R. I. 414.

15 Ely v. Ely, 80 Ill. 532; Ins. Co. v. Hoven, 95 U. S. 242; Mitchell v. Home Ins. Co., 32 Iowa, 421.

16 Shaw v. Etna Ins. Co., 49 Mo. 578; Etna Ins. Co. v. Jackson, 16 B. Mon. 242; Herkins v. Rice, 27 N. Y. 173.

17 May on Ins., §§ 80, 81, 95.

18 Nussbaum v. Northern Ins. Co., 37 Fed. Rep. 524.

executed shall be void, and no right of action thereon maintainable. The usual phrase is that if the insured shall have" already or thereafter put any insurance upon the property; but sometimes the phrase used is broader, "that if there shall have been already any other insurance, or shall thereafter be any placed thereon," the policy shall be void. As a general rule, the phrase other insurance refers to an insurance of the same interest and not to the interest in the same property held by persons other than the insurer, and, therefore, other insurance placed upon the property insured, especially after the first insurance is placed thereon, by the mortgagee, or by any person having a right to insure who is not the first insurer, does not avoid the policy. Where the clause was that if "the assured shall have already any other insurance against loss by fire on the property hereby insured," of which no notice was given, the policy should be void, it was held that a prior policy held by the vendor of the property, of which no notice was given by the insurer, the vendee, was not such an insurance as avoided the last, the vendee's policy. "To constitute a double insurance," said the court, "both the policies must be upon the same insurable interest, either in the name of the owner of that interest, or in the name of some other person for his benefit." And it added: "The plain and obvious meaning of the whole clause is, that if the assured has any other policy of insurance upon the property, by assignment or otherwise, by which the interest intended to be insured is already, either wholly or partially, protected, he shall disclose that fact and have it indorsed on the policy, or the insurance will be void, and the same when he shall make any subsequent insurance."'19 There are a number of decisions to the same effect.20 A still stronger case was when the policy provided that "if the assured, or any other persons or parties interested, shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss

19 Etna Fire Ins. Co. v. Tyler, 16 Wend. 385; s. C., 30 Am. Dec., 90; 1 Bennett's Fire Ins. Cas. 576; affirming 12 Wend. 507.

20 Rawley v. Empire Ins. Co., 3 Keyes, 557; McMaster v. N. A. Ins. Co., 55 Ind. 222; s. c., 14 Am. Rep. 239; Pitney v. Glen Falls Ins. Co., 61 Barb. 335; s. C., on appeal, 65 N. Y. 6; Phillips v. Perry Co. ns. Co., 7 Phila. 673; s. C., 27 Leg Int., 324.

22

or damage by fire, on the property hereby insured, not consented to by the company," "then this insurance shall be void." The phrase, "other persons or parties interested,' was held to refer to parties interested in the insured's insurance merely, and that it was not the understanding or intention that any other person who might have a separate interest in the property, and not connected in interest with the plaintiff, and having no interest in his insurance, might avoid the plaintiff's contract by obtaining an insurance of his own interest in the property, without the insured's knowledge or consent.21 Nor can such a clause prevent a mortgagee from insuring his own risk; nor can the mortgagee invalidate his mortgagor's prior insurance by insuring his own interest.2 So even where the mortgagee provided that the mortgagor should keep the building on the mortgaged premises insured, and assign the policy to the mortgagee, and that in case he failed to so insure, the latter might procure such insurance at the expense of the mortgagor, and add the amount paid for it to the mortgage; it was held that insurance placed thereon by the mortgagor, acting for himself and in his own interest, did not avoid the prior insurance. Yet where the loss, if any, was made "payable to J. W. Van A., as his interest appears," and it contained the usual clause avoiding it because of double insurance; and at the time J. W. Van A. held a mortgage, of which fact the insurance company were not informed, and the mortgagor subsequently procured another policy, without the knowledge of the mortgagee, in his own favor, from another insurance company, it was held that the first policy was avoided by his act, for it was not a case of two policies issued upon two different insurable interests, but both covered the same interest-the interest of the owner of the mortgaged property.24 And so

23

21 Acer v. Merchant's Ins. Co., 57 Barb. 68.

22 Guest v. Fire Ins. Co., 66 Mich. 98; s. c., 33 N. W. Rep. 31; Carpenter v. Continental Ins. Co., 61 Mich. 635; 28 N. W. Rep. 749.

23 Titus v. Glen Falls, 81 N. Y. 415; Carpenter v. Continental Ins. Co., 61 Mich. 635; s. c., 28 N. W. Rep. 749.

24 Van Alstyne v. Etna Ins. Co., 14 Hun, 360; Richmond v. Niagara Fire Ins. Co., 15 Hun, 248; s. c., revised on other points, 79 N. Y. 230; Hine v. Homestead Fire Ins. Co., 29 Hun, 84; affirmed, 93 N. Y. 75; Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391; Birdwell v. Northwestern Ins. Co., 19 N. Y. 179; Perry v. Lorillard Fire Ins. Co., 61 N. Y. 214, affirming

where the mortgagor assigns the policy to the mortgagee, any second insurance the mortgag

may thereafter put on the mortgaged premises avoids the first policy, 25 although not, perhaps, if the mortgagee were to take out additional insurance.

5. Mortgagor or Mortgagee cannot be Compelled to Pro Rate with Others.-If a policy is issued directly to the mortgagee then he is not compelled to pro rate with the mortgagor, and so the mortgagor is not compelled to pro rate with the mortgagee, if the foregoing rules are applicable to the question, and there is no reason why they are not. Thus, where a policy was issued to a mortgagor which contained the usual clause of pro rating if other insurance should be taken out, it was said in a dictum that the mortgagor was not bound to pro rate with insurance subsequently taken out by the mortgagee. A policy was issued directly to a mortgagee, which contained the following clause: "Nor shall the insured be entitled to recover of this company any greater proportion of the loss or damage than the amount hereby insured bears to the whole sum insured on said property, whether such other insurance be by specific or by general or floating policies, and without reference to the solvency or the liability of other insurers." On the day of the date of this policy, the mortgagors caused a policy previously taken out by them on this interest in this and other property of theirs to be made payable to the mortgagee, "as his interest appears," and subsequently took out two other policies on their interest in other property of theirs and the mortgaged property. These were also made payable to the mortgagee, "as his interest appears." The mortgagee had previously requested them to secure him for a debt due him from them, other than the mortgage debt, by policies of insurance payable to him on property other than the mortgaged property; but he did not know till after the loss that any of these policies had been taken out, except the one in suit. The defendant company contended that, under the provisions of

6 Lans. 201; Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141; Gillert v. Liverpool, etc. Ins. Co., 73 Wis. 203.

25 State v. Mutual Fire Ins. Co., 31 Pa. St. 438; Imperial Fire Ins. Co. v. Dunham, 117 Pa. St. 460; Lyconing Co. v. Mitchell, 48 Pa. St. 367; Buffalo Steam Engine Works v. Sun Mutual Ins. Co., 17 N. Y. 401. 26 Adams v. Greenwich Ins. Co., 9 Hun, 45; affirmed, 70 N. Y. 166.

the policy quoted, the mortgagee could recover only such amount of the sum insured of the policy as the amount bore to the whole sum insured by all the policies, he having received on the last three policies some fifty-five hundred dollars, which he applied in part payment of a debt of sixty-two hundred dollars due him from the mortgagors, in addition to the mortgage debt. But this contention of the defendant, who had issued the policy directly to the mortgagee, was overruled, and the company held liable for an amount not exceeding the amount of the mortgage debt, regardless of the amount he had previously received. Speaking of the provision quoted, the court said: "This provision refers to other insurance by the same person, or to other insurance of the same interest. It does not apply to the case of separate insurance by mortgagor or mortgagee, or by different mortgagees upon the same property. The phrase 'property hereby insured' refers to the interest of the assured." "Parties to the contract," added the court, "could not have contemplated or intended a construction by which the contract could have been affected or avoided by the acts of third persons over which they could have no control." And finally : "As these policies were not upon his interest as mortgagee; as they were not taken upon the mortgaged property with his knowledge or by his request, as, in fact, if the subsequent policies were not invalid, they applied only to the separate interest of the mortgagor-they do not furnish any defense to the suit upon the policy." "But no one can suppose for a moment," said Chancellor Walworth, "that these underwriters intended to be so unreasonable as to require a person insuring with them, under a penalty of a forfeiture of his policy, to give notice of other insurance which any former owner of the property might have made thereon, although he had no interest in that insurance, and the right of the company could not in any way be affected thereby; and if there was any such insurance, even in those cases where the fact was notified to the underwriters, the person insured with them should only receive a part of his loss from them, although he had no interest in and could not be benefited by the other insurance. To suppose the under

27 Johnson v. North British & M. Ins. Co., 1 Holmes, 117.