Anglo-American Telegraph Company v. Spurling. 1879 registered as transferees of the stock; to this de- [203 mand the company assented. How can these facts constitute an estoppel against the company? What have they done that they should be debarred from saying that Coates did not transfer the stock? What more have they done than to accept the invitation of Burge & Co.? Let us look at the question from another point of view, and consider whether, if the company should desire to hold Burge & Co. responsible, the latter would be estopped from denying themselves to be stockholders. I know it may be said that estoppels are mutual and reciprocal, and that if the company are estopped, Burge & Co. likewise are estopped. But suppose that the company were desirous of saying to Burge & Co., "You have so conducted yourselves that as against you we have the right to affirm that to be the truth which is not the truth." Why would that be more unreasonable in the mouth of the company than it is in the mouth of Burge & Co.? It seems to me impossible to hold, under these circumstances, that Burge & Co. are estopped. It has been argued upon their behalf that the company were estopped because it was their duty to make inquiries, and because it must be taken against them that they were satisfied by the inquiries which they had instituted, and that they affirmed to Burge & Co., not merely that Coates had been a stockholder, but also that he had executed the instrument of transfer. I dissent entirely from that argument. I believe that the system of inquiry by companies before the registration of a transfer is modern: no doubt that is a very reasonable and proper step for companies to take: nevertheless, as it seems to me, it is clearly a practice to which they have recourse for their own benefit, and not for the benefit of any one else; because, although there may be no estoppel between them and a person who brings transfers to them, there would be between them and his transferees, and therefore, in order to keep themselves out of trouble, they ought to endeavor to ascertain whether the transfer brought to them is a valid instrument. The existence of this practice does not help the case for Burge & Co. I cannot see any principle by which the company are precluded from saying to Burge & Co., "You brought us a forged transfer: we believed it to be genuine, and we have registered you as stockholders; but we are not precluded from saying that the *transfer was forged, [204 and that you had not a real title." That argument seems, as a matter of principle, to express the ground of the de 1879 Simm v. Anglo-American Telegraph Company. cision at which we ought to arrive. Is there anything in the cases cited which ought to lead to a conclusion in favor of Burge & Co. ? I think not. In Knights v. Wiffen (') the Court of Queen's Bench held that the defendant had affirmed to the plaintiff that he held sixty quarters of barley separated from the rest at the plaintiff's disposition. The plaintiff had not told any untruth, nor had he, by any conduct on his part, offered any inducement to the defendant to make that statement. That case, therefore, is not like the present, where Burge & Co., however innocently, caused to be presented to the company a false and fraudulent instrument as genuine. The next case to which I will refer is In re Bahia and San Francisco Ry. Co. (3). From the facts in that case it appears that the transferees had acted upon the certificates issued by the company to former shareholders, or at least to supposed former shareholders, and the Court of Queen's Bench held that, inasmuch as the company had issued those certificates for the purpose of being acted upon, so that the shares might be sold or be used as a security for a loan, they were upon the principle of Pickard v. Sears (), and cases of a similar kind bound to indemnify those who had acted upon the faith of those certificates. That state of facts does not exist here: the company have made no untrue representation: they issued certificates to Burge & Co., but this they were induced to do by the conduct of that firm. The next case is Hart v. Frontino, &c., Gold Mining Co. (). In that case also the plaintiff had made no incorrect representation, he had not committed any mistake, upon the faith of which the defendants acted; but they admitted him as a partner, and he was induced to pay a call, and it was held, rightly or wrongly, that they were estopped from denying they were liable to indemnify him. That case, therefore, is no authority against our decision. I wish to say a few words as to my own judgment in Hart v. Frontino, &c., Gold Mining Co. (). I am afraid that I did not perceive the effect of the certificates which had 205] *been issued, and did not appreciate the judgment in In re Bahia and San Francisco Ry. Co. (3). I can see now that the form of the certificates was important, and perhaps the case in the Court of Queen's Bench did not govern the case in the Court of Exchequer. If the decision in Hart v. Frontino, &c., Gold Mining Co. () was wrong, it will be competent to this court at a proper moment to overrule it: (3) 6 A. & E., 469. (4) Law Rep., 5 Ex., 111. (5) Law Rep., 5 Ex., 111, at p. 115. Anglo-American Telegraph Company v. Spurling. 1879 I think, however, that it was not wrong, but that it does not apply to the present case. In the view which I take it is unnecessary to consider whether, in order to support the suggested estoppel, it is imperative that any damage should have accrued to Burge & Co., and whether in point of fact they have suffered any damage. I frankly own that even if Burge & Co. could be shown to have missed a benefit, or incurred a loss by the conduct of the company, the legal result would be the same: the misfortune of Burge & Co. arose from their having accepted a forged transfer. I wish it to be distinctly understood that I do not express any opinion whether the second action would have been maintainable, if any damage had accrued to the company: cogent arguments no doubt may be adduced in favor of either view; but the company are willing to pay the costs of the action brought by them rather than have a doubtful question discussed, and they are content that judgment be recorded against them, although technically they do not consent to it so as to preclude themselves from appealing, if it is wished to take the opinion of a higher tribunal. The result is that in each action judgment will be entered for the defendants. BRETT, L.J.: In the first of these actions it seems to me that two questions arise, first, whether the judgment of my Brother Lindley can be supported on the grounds which he has assigned; and secondly, whether it can be upheld for other reasons. With great deference to him, and after much hesitation, I have clearly come to the conclusion that the judgment of my Brother Lindley cannot be supported for the reasons upon which it is founded. Those reasons are that Burge & Co., supposing themselves to have become transferees of the stock, which really belonged to Coates, *mortgaged it to Simm and Ingelow representing the [206 National Bank, and that a certificate was issued by the company which asserted that Simm and Ingelow were the holders of the stock, and consequently that an estoppel existed against the company in favor of Simm and Ingelow or the National Bank. Pausing here, I may say that I think it clear upon the authority of In re Bahia and San Francisco Ry. Co. (), that the certificate issued by the company, being acted upon by Simm and Ingelow, did raise an estoppel between them. My Brother Lindley, however, proceeded to hold that, inasmuch as this estoppel existed in favor of Simm and Ingelow as against the company, there (1) Law Rep., 3 Q. B., 584. 1879 Simm v. Anglo-American Telegraph Company. was a title by estoppel to the stock, and that when Simm and Ingelow ceased to be mortgagees upon the advance being paid off, they became trustees of the stock for Burge & Co., who may rest upon the title passing to them as cestuis que trust of Simm and Ingelow. With great deference, it seems to me that my Brother Lindley has given a wrong interpretation to the phrase, that Simm and Ingelow had a title by estoppel. The doctrine of estoppel was recognized in the courts of common law just as much as it was in the courts of equity, and it seems to me that an estoppel gives no title to that which is the subject-matter of estoppel. The estoppel assumes that the reality is contrary to that which the person is estopped from denying, and the estoppel has no effect at all upon the reality of the circumstances. I speak not of that estoppel, which is said to arise upon a deed of conveyance or other deed of a similar nature. I incline to think that when the word "estoppel" is used with reference to deeds of that kind, it is merely a phrase indicating that they must be truly interpreted. I am speaking now of the estoppels which arise upon transactions in business or in daily life, and, it seems to me, these estoppels have no effect on the reality of the transaction. It may be that under some circumstances an estoppel will prevent a person from dealing in a particular manner with goods; for instance, if a person is estopped from denying that he has made a contract to deliver goods, and if the goods are still in his possession, in a suit to enforce performance of the alleged contract he may be obliged to hand over the goods, although, 2071 in fact, there was no contract, and he may be liable to act as if there had been a contract, and to fulfil his supposed obligation. But suppose that although a person is estopped from denying that he has made a contract to deliver goods, he has parted with the goods and has sold them to somebody else: it seems to me that although he may be estopped as against the person claiming delivery under the supposed contract, he cannot be compelled to deliver the goods, which, there being no contract, have legally passed to somebody else: owing to the estoppel he cannot deny that a contract was entered into, but he cannot fulfil it by delivering another person's goods; and therefore the only remedy against him is that he shall pay damages for not delivering the goods. In a similar manner a person may be estopped from denying that certain goods belong to another; he may be compelled by a suit in the nature of an action of trover to deliver them up, if he has them in his possession and under his control; but if the goods, in respect of which Anglo-American Telegraph Company v. Spurling. 1879 he has estopped himself, really belong to somebody else, it seems impossible to suppose that by any process of law he can be compelled to deliver over another's goods to the person in whose favor the estoppel exists against him: that person is entitled to maintain a suit in the nature of an action of trover against him; but that person cannot recover the goods, because no property has really passed to him, he can recover only damages. In my view estoppel has no effect upon the real nature of the transaction: it only creates a cause of action between the person in whose favor the estoppel exists and the person who is estopped. Apply these principles to the present case. For a time an estoppel existed in favor of Simm and Ingelow, representing the National Bank, because the telegraph company had issued a certificate stating that the stock was then the property of Simm and Ingelow, and the National Bank had acted upon that certificate. In my opinion if Simm and Ingelow could have shown that damage had accrued to the bank from the issuing of the certificate, they might have maintained an action against the telegraph company; but so soon as Burge & Co. had paid off the advance made to them by the National Bank, the bank was no longer in a position to suffer damage from the issuing of the certificate, and no action upon the ground of estoppel could be maintained for its benefit. The only persons who could [208 have availed themselves of the estoppel were Simm and Ingelow, and that estoppel did not give them any legal title to the stock, as my Brother Lindley has supposed; it only gave them for a time a right of action against the telegraph company, and therefore when they themselves could not maintain an action, it is wrong to say that they could transmit a right of action to Burge & Co. The latter cannot maintain this suit upon the ground that the company were at one time estopped as against Simm and Ingelow, when at the time of bringing the action no estoppel existed between them and Simm and Ingelow. With great deference, therefore, I cannot agree with the grounds upon which the judgment was founded. It may be argued, however, that the judgment can be supported on other grounds. If Burge & Co. are to be considered as the only plaintiffs, I come to the conclusion, upon two grounds, that no estoppel exists in their favor against the telegraph company; first, because in point of fact no representation sufficient to raise an estoppel was made by company to Burge & Co.; and secondly, because even if a representation upon which an estoppel might be founded the |