VENDOR AND VENDEE   741

defendants on account of the loss by tire of a building. * * *

The question is whether this action is maintainable. The case was tried before Chitty, J., and he. in a very careful and elaborate judgment, has come to the conclusion that the insurance company cannot recover against the defendants in respect of the money paid by them. It seems to me that the foundation of his judgment is this, that he considers that the doctrine of subrogation of the insurer into the position of the assured is confined within limits, which prevent it from extending to the present case. I must now consider whether I can agree with him.

In order to give my opinion upon this case, I feel obliged to revert to the very foundation of every rule which has been promulgated and acted on by the (hurts with regard to insurance law. The very foundation, in my opinion, of every rule which has been applied to insurance law is this, namely, that the contract of insurance contained in a marine or tire policy is a contract of indemnity, and of indemnity only, and that this contract means that the assured, in case of a loss against which the policy has been made, shall be fully indemnified. but shall never be more than fully indemnified. That is the fundamental principle of insurance, and if ever a proposition is brought forward which is at variance with it, that is to say. which either will prevent the assured from obtaining a full indemnity, or which will give to the assured more than a full indemnity, that proposition must certainly be wrong. * * *

I have mentioned the doctrine of notice of abandonment for the purpose of corning to the doctrine of subrogation. That doctrine does not arise upon any of the terms of the contract of insurance; it is only another proposition which has been adopted for the purpose of carrying out the fundamental rule which I have mentioned. and it is a doctrine in favour of the underwriters or insurers in order to prevent the assured from recovering more than a full indemnity: it has been adopted solely for that reason. It is not, to my mind. a doctrine applied to insurance law on the ground that underwriters are sureties. Underwriters are not al-ways sureties. They have rights which sometimes are similar to the rights of sureties, but that again is in order to prevent the assured from recovering from them more than a full indemnity. Rut it being admitted that the doctrine of subrogation is to be applied merely for the purpose of preventing the assured from obtaining more than a full indemnity, the question is, whether that doctrine as applied in insurance law can be in any way limited. Is it to be limited to this, that the underwriter is subrogated into the place of the assured so far as to enable the under-writer to enforce a contract, or to enforce a right of action? Why, is it to be limited to that, if when it is limited to that, it will, in certain cases, enable the assured to recover more than a full