the following language: "Now it is perfectly clear, and has been settled by various decided cases, that by the term 'stranding' neither of the contracting parties could intend a taking of the ground by the ship in the ordinary course of navigation used in the voyage upon which she was engaged. It is needless, therefore, to say, that when a vessel, in the course of a voyage insured, is sailing in a tide river, or puts into a tide harbor, the taking the ground from the natural cause of the deficiency of water, occasioned by the ebbing of the tide, is no stranding, within the meaning of the policy. ... We think a stranding cannot be better defined than it has often been in several decided cases, namely, 546] where the taking of the ground does not happen solely from those natural causes, which are necessarily incident to the ordinary course of the navigation in which the ship is engaged, either wholly or in part, but from some accidental or extraneous cause.' In applying this doctrine to the facts before us, we may paraphrase it by saying that a vessel is stranded where the taking of the ground does not happen from usual causes ordinarily incident but from unusual causes. It has been argued that there cannot be a stranding while the vessel is in the ordinary course of navigation, and the counsel for the defendant in effect contended that there can be no stranding whilst the vessel is in the ordinary track: I cannot assent to that, for it would follow that whilst she was in the ordinary track for the voyage, no taking the ground could be deemed a stranding, although it might happen from causes of a most unusual kind. It is sufficient to say that where by temporary circumstances the bottom of the harbor is in a different condition from its ordiinary state, and a vessel takes the ground in a different manner from that which was intended, she may be said to be stranded. If this be true, the only question is whether the bottom of the harbor was in a different condition from its usual state. If it were true that steamers had habitually altered the ground by using their paddles, the shifting coudition of the harbor would have been its ordinary condition; similarly, if the harbor had been altered by the tide or by a running stream which occasionally brought down much water, the changeable condition would be the ordinary condition; but upon the facts of the present case the judge was justified in finding that some steamers using the harbor had taken the unusual course of forcing their way out of the harbor, and had thus temporarily altered the bottom. Certainly the vessel took the ground in a different way from what was anticipated, and the accident was caused by a temporary alteration of the harbor. It was an unusual event, and I think that the vessel was stranded within the meaning of the policy. COTTON, L.J.: I am of the same opinion. It was contended that the bank was an incident of the ordinary condition of the harbor; but it appeared that such a state of circumstances had never been known before; it was [547 an unusual circumstance, and the vessel grounded from an extraneous cause. The definition of Tindal, C.J., in Kingsford v. Marshall (') applies. The harbor was not in its ordinary condition; the shallowness was not caused by the tide, but by an accidental and extraneous circumstance; it was an unknown and unforeseen raising of the bottom which caused the small depth of water. I think that this was a stranding within the meaning of the policy. THESIGER, L.J.: If upon the evidence in this case it had appeared that the trench and bank, where the grounding took place, had been due to the ordinary shiftings of the bed of the harbor, arising either from natural causes or from artificial causes constantly and more or less regularly acting, the case would not in my opinion have been one of stranding; but the inference drawn, and I think properly drawn, by Field, J., from the facts proved was that the trench and bank were due to an accidental as well as artificial cause temporarily and recently arising, and that the bed of the harbor was not in its usual or ordinary state and condition. Under such circumstances and upon the principles laid down by Tindal, C.J., and other judges, it appears to me that the judgment for the plaintiff was right. Judgment affirmed Solicitors for plaintiff: Hollams, Son & Coward. Solicitors for defendant: Ashurst, Morris, Crisp & Co. (1) 8 Bing., 458, at pp. 463, 464. [5 Queen's Bench Division, 548.] *TOMBS, Appellant; MAGRATII, Respondent. [548 Volunteer Act, 1863 (26 & 27 Vict. c. 65), s. 21, subs. 1, 2—Dismissal of MemberAdministrative Battalion-Commanding Officer. Under the Volunteer Act, 1863 (26 & 27 Vict. c. 65), s. 21, subs. 1, 2, the ordinary commanding officer of a volunteer corps, which forms part of an administrative battalion, is authorized to dismiss a member from the corps for breach of discipline, although the corps is at the time assembled in camp with the rest of the administrative battalion under the general command of the battalion commander. 1880 Darrell v. Tibbitts. 560] [5 Queen's Bench, Division, 560.] [IN THE COURT OF APPEAL.] *DARRELL V. TIBBITTS. Insurance (Fire)-Contract of Indemnity-Payment by Insurer-Right of Insurer to Benefit of Contract entered into by Assured-Landlord and Tenant. A policy of fire insurance is a contract of indemnity, and upon payment of the amount of loss the insurer is entitled to be put into the place of the assured; and if at a subsequent time the assured receives compensation from other sources for the loss sustained by him, the insurer is entitled to recover from the assured any sum which he may have received in excess of the loss actually sustained by him. North British and Mercantile Insurance Co. v. London, Liverpool and Globe Insurance Co. (22 Eng. R. 323) commented upon and followed. THE facts of this case may be shortly stated as follows: One Forbes was the owner of a house in Brighton; he demised it to certain persons named Bonner by a lease, which rendered the lessees bound to repair, "except casualties by fire, demolition by storm or teinpest of the building or any part thereof, or destruction by foreign enemies." Forbes insured the house in the Union Society (of which the plaintiff was secretary) by a policy against fire covering injury by explosions of gas. In 1877 the corporation of Brighton repaired the streets by a steam roller, which owing to its weight damaged a pipe and caused an escape of gas into the house demised to Bonner, where it exploded and did considerable damage. Forbes sold the house and the policy to the defendant, and after some negotiation the Union Society paid to the defendant a sum of £750. The lessees received compensation from the corporation of Brighton for the damage done to the house by the explosion, and with the sum received reinstated the house. At the time when the Union Society paid to the defendant the sum of £750 they were unaware that by the terms of the lease the lessees were bound to make good injuries done by an explosion of gas. The Union Society, upon hearing that the house had been reinstated by Bonner, claimed from the defendant the sum of £750, and upon his refusal brought the present action in the name of the plaintiff. Lush, J., gave judgment for the defendant. The plaintiff appealed. 561] *May 11. Benjamin, Q.C., and Cohen, Q.C. ( WoodHill with them), for the plaintiff. R. T. Reid, for the defendant. The arguments are sufficiently noticed in the judgments. The following cases were cited: Mason v. Sainsbury ('); Godsall v. Boldero (); Dalby v. India and London Life Assurance Co. (3); Yates v. Whyte (*); Dickenson v. Jardine(); Cousins v. Nantes (®); Simpson v. Thomson ('). Cur. adv. vult. May 12. The following judgments were delivered: BRETT, L.J.: We have to give judgment in a case which has been heard before Lush, J., but which was not argued before him upon the point that we are to decide, and in which the authorities cited to us, and binding upon us, were not mentioned to him. He thought that the case must come before the Court of Appeal, and consequently he gave no considered judgment: therefore we are practically not overruling his judgment, but we are dealing with the case as upon an original hearing, although no doubt this is technically an appeal. At the commencement of the argument I understood the question for our determination to be, on the one hand, whether fire policies were contracts of indemnity like marine policies, or, on the other, whether they were contracts to pay a certain sum of money in a particular event like life policies. But I think that this question has been settled by a decision of the Court of Appeal, whose judgment we are bound to follow; and the real point in this case turns out to be whether the plaintiff can maintain the action. It seems to me, according to the principle of North British and Mercantile Insurance Co. v. London, Liverpool and Globe Insurance Co. ("), that if the tenants had not repaired the damage, and had declined to do so, the insurance company would have been bound to pay the landlord who had insured with them, but would have had a right [562 to bring in his name an action against the tenants, and recover from the tenants what they had paid to the landlord; in other words, a policy of fire insurance is a contract of indemnity similar to that which is contained in a policy of marine insurance. That case seems to me further to show that if the landlord had sued the tenants before he received payment from the insurance company, he must have recovered from them, for it would have been no answer by the tenants that the landlord was insured. That case seems to me also to decide this, that if the landlord had recovered damages from the tenants equivalent to the injury done to him by the refusal of the tenants to repair, he could not afterwards sue the insurance company. The landlord was paid by the insurance company at a time when they could not resist his demand, as they were bound by their contract to pay. Afterwards the corporation of Brighton, by whose negligence the mischief happened, paid the amount of damage to the defendant's house, and this amount was expended in making good the damage. I think, however, that the case stands in the same position as if the tenants had executed the repairs with their own money. The question now arises whether the insurance company who paid the money to the landlord at a time when they were obliged to pay by virtue of their contract, can recover it back because the tenants have done that which they could not avoid doing: if they had not repaired, they must have paid damages to the landlord. If the company cannot recover the money back, it follows that the landlord will have the whole extent of his loss as to the building made good by the tenants, and will also have the whole amount of that loss paid by the insurance company. If that is so, the whole doctrine of indemnity would be done away with the landlord would be not merely indemnified, he would be paid twice over. A technical difficulty arises in my mind as to the ground upon which the landlord can be held liable in this action, but it is a difficulty which ought to be surmounted. I do not think that the money can be recovered back upon the ground that the consideration for the payment of the money has wholly failed: because the premium upon the policy is part of the consideration, and no one supposes that the premium is to be returned. But it seems to me that according to all rules of law we have a 563] right to imply a *promise on the part of the landlord to the insurance company at the time of payment by them, that if the loss should be afterwards made good by the tenants, he would repay the money which he received from the insurance company. I think that the landlord is liable on another ground also. The doctrine is well established that where something is insured against loss either in a marine or a fire policy, after the assured has been paid by the insurers for the loss, the insurers are put into the place of the assured with regard to every right given to him by the law respecting the subject-matter insured, and with regard to every contract which touches the subject-matter insured, and which contract is affected by the loss or the |