Governor and Company of Bank of England v Miller and Another

JurisdictionEngland & Wales
JudgeViscount Dunedin,Lord Atkinson,Lord Shaw of Dunfermline,Lord Sumner,Lord Carson
Judgment Date16 July 1926
Judgment citation (vLex)[1926] UKHL J0716-1
Date16 July 1926
CourtHouse of Lords

[1926] UKHL J0716-1

House of Lords

Viscount Dunedin.

Lord Atkinson.

Lord Shaw.

Lord Sumner.

Lord Carson.

Governor and Company of the Bank of England
Miller and Another.
Viscount Dunedin .

My Lords,


I Have considered this case with repeated care and anxiety, not only because of its intrinsic importance but because before I had framed my speech I had become aware of the difference of opinion which exists among your Lordships. There are occasions on which differences of opinion may be deplored, but in this case it is scarcely a matter for wonder. After all is said and done, there were only two people who knew the whole truth; one of them is dead and has left no written or spoken record; the other is a convicted thief and forger, and his evidence on many points has been proved to be untrue, so that he is utterly unreliable, but unfortunately there is no inference that if you take the opposite of what a liar says it is something that is proved to be true. In this unfortunate state of circumstances, when one is bound to catch at every little indication to find the truth, it cannot, I think, be matter for adverse criticism that different minds should form different opinions.


Now, the facts have been so fully set out by those of your Lordships who have already addressed the House that I am not going to tell the story over again, but shall address myself to those who know the story in all its main outlines. The theory of the defence which prevailed in the Outer House and found favour with the Lord Ordinary was that old Mr. Wilson became cognisant of all that David Anderson had done, but, impelled by fear lest his cheating in the matter of super tax assessments should be found out, kept silence and was content to adopt as his own the signatures of David Anderson. Now, the first observation I make is that of the four learned Judges and four noble and learned Lords who have since considered the case, not one adopts the Lord Ordinary's opinion. Like my noble and learned friend Lord Shaw, I particularly associate myself with the Lord President's view of the general situation, and, like Lord Shaw, I think it incredible that Wilson really knew that his signature had been forged, and large sums of money appropropriated by Anderson, and was content to adopt all that had been done for fear of ultimate consequences to himself if he did not so adopt them. I do not say more, for it would only be reiterating, probably in less convincing language, what has already been said by others. Once the general case breaks down, as I think it does hopelessly, I find it impossible in my own opinion to come to the conclusion reached by my noble and learned friend Lord Sumner, that none the less there were grains of truth in Anderson's story, such grains of truth as being surmised will serve to outweigh the general probabilities of the case. Here I wish to say especially that I think the pursuers are not to be prejudiced by the frank admission of Sir John Simon, that in the case of £500 4 per cent. Victory Bonds, No. 54 of Process, as to which there was an approval letter admittedly signed by Wilson, and in the case of the £4,210 10s. 6d. 5 per cent. War Stock, No. 16 of Process, as to which there is the special letter admittedly signed by Wilson, he could not ask for a decree�an admission which was made by the Counsel in the Court below and has been given effect to in the Interlocutor of the First Division. I do not think that there can be drawn from that any inference as to real knowledge, so far, I mean, as based on an admission. These two approvals may have been tricked out of Wilson, but no proof of that being forthcoming, the pursuers had to take them as they stand. On the general question, therefore, of adoption of the forgeries I am in accord with the opinion of the Judges of the First Division and with two of your Lordships, and this remark applies to what is called the Robertson incident just as much as to the other incidents of the case. I am not able to think that the testimony of Robert Anderson as to the reading of Robertson's letter enclosing that of the Bank to Wilson, and of Wilson saying, "That is all right, David knows about that," is, in view of the difficulties as to date, sufficiently proved; nor can I think that if proved an inference could be to any certainty drawn that Wilson really knew what had been done. So far, therefore, it would seem that the result of the opinion I have formed would lead to a vote for the affirmation simpliciter of the Interlocutor appealed against. But I am not able to come to that result.


My Lords, it is generally with regret, and always with diffidence, that I find myself constrained to form my opinion on a point which has not been considered a crucial point by other Judges and learned Lords. It is all the more unpleasant when the point has not been dealt with by Counsel. It was not dealt with by the learned Dean for the appellants, doubtless because he thought it would really prejudice by frittering away his powerful argument on the whole case. It was not dealt with by Sir John Simon, as evidently that very able and experienced Counsel thought that as it had not been mooted against him it would be better to let sleeping dogs lie. It does not often happen, but if one's own opinion is definite, one is not entitled to suppress it and let the judgment go the other way, and I can only say that on this occasion my opinion has not been formed without much careful consideration and a very large perusal of authority.


My Lords, this is a Scotch case, and it is therefore most appropriate to use the terms of the law of the lex fori, though I confess for once I prefer the English terms. Your Lordships have all treated the case as one of what would be called in Scotland homologation. I confess I have always been puzzled how our Scotch lawyers who were so addicted to Latin came in this instance to stray into Greek; nor do I find Stair's explanation 4.40.49, that it comes from a mathematical term "by which one figure doth quadrate with another having like angles thereto" either very clear or satisfactory. Any way, the term stuck, and there are many cases in Morrison's dictionary which in England would be classed under the heads of adoption or ratification. Homologation, however, is not the only heading in the dictionary which contains cases which are in the domain of law with which we are here engaged. There are a number of cases under the heading "Personal Objection." Personal objection in time gives way to the expression "Personal Exception," and, finally, to the simple word "Bar," and here it comes to be tantamount to the English estoppel in pais. I am not going to examine all the cases; they are too numerous, and it would be of no practical use. The outcome of it all is that it was only gradually that the Scotch lawyers realised the true distinction that is taken between adoption proper and estoppel. No doubt, although the ideas are distinct, there are many cases where the facts are such that you might rest the conclusion to be drawn from them on either principle, and that is apt to lead to confusion, or perhaps I might say to an insufficient appreciation of the true difference between the two principles.


Now, that estoppel pure and simple is the law of Scotland, so that Freeman v. Cooke and Baron Parke's famous judgment is good law north of the Tweed, was authoritatively laid down in this House by Lord Chancellor Cranworth in Cairncross v. Lorimer, 3 MacQ. 827:

"The doctrine will apply which is to be found, I believe, in the laws of all civilised nations, that if a man either by words or by conduct has intimated that he consents to an act which has been done and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned to the prejudice of those who shall give faith to his words or to the fair inference to be drawn from his conduct."


Since that case the English authorities have always been relied on, it being acknowledged that the principle and the limits of its application have been more thoroughly explored in English decisions than in those at home. While laying such stress on the root difference between adoption and estoppel or, if you like it better, homologation and bar, I must pause to correct what I think a real mistake in a book to which I believe, in common with all my generation of Scottish advocates, I owe a deep debt of gratitude. I mean Sheriff Guthrie's edition of Bell's Principles. In a note to his paragraph about personal exception he says:

"Lord Blackburn in Burkinshaw v. Nicolls, 3 App. Cas. 1,004, uses homologation and estoppel as equivalent terms."


I think he has misread what Lord Blackburn said. I do not tarry to examine it; those who choose can read the case and see if they agree with me, but that Lord Blackburn's real opinion was not to that effect is quite clear from the case of British Linen Bank v. Mackenzie, 6 App. Cas. 82, where this House reversed the judgment of the First Division, and held that mere silence on the part of the person who found out that his signature had been forged to a bill did not preclude him from denying his liability, the Bank who had already discounted the bill not having been prejudiced by the delay occasioned by his silence. In that case Lord Blackburn spoke as follows: �

"I think if he ratified to anybody or for any purpose the act done by Fraser as professing to be his agent, that for all civil purposes inured to make him reliable, just as if he had originally authorised that act, and his conduct and silence combined with his conduct may prove such a ratification. And if the phrase 'adopted it as his genuine signature' is to be understood as meaning that he...

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