Hyndman-Jones CJ:

I am of opinion that the first Defendant succeeds on the point raised.

The case has come before me in its present shape by reason of an Order made by the Acting Chief Justice on 10 July 1911, which directed (I cite the words of the order) that "the question be first determined whether the Plaintiff's claim is barred by (1) Estoppel (2) Limitation Ordinance.

These pleas were raised in paras. 10 and 11 of the amended Statement of Defence of the first Defendant but on the hearing before me Mr. Koek abandoned his plea under "The Limitation of Suits Ordinance 1896" and his first two grounds of estoppel; and was content to rely on his third ground, viz:- that "on 13 August 1909 the Plaintiff in the action (Originating Summons 381, 1909, referred to in para. 8 of the Statement of Defence) applied for and obtained an order for an account of the amount due under and redemption of the said mortgage.

The question appears to turn upon whether the Plaintiff knew of the alleged fraud at the time when he applied for and obtained this order. I may say, parenthetically, the fraud is emphatically denied by the first Defendant in para. 6 of his Statement of Defence, for if the Plaintiff did know of the fraud and yet chose to proceed by Originating Summons to ask for and obtain an account under the mortgage on the ordinary footing, he must be taken to have made his election once and for all; it does not lie in his mouth to approbate the mortgage by asking for an account under it, and afterwards to attack it as invalid on the ground of fraud.

Lord Blackburn in Scarf v. Jardine, LR 7 Appeal Cases 345, put the principle of law in this way: he said "when a party in his own mind has thought that he would choose one of two remedies and has communicated his determination to the other side in such a way as to lead the opposite party to believe that he has made that choice he has completed his election and can go no further; and, whether he intended it or not, if he has done an unequivocal act, i.e., an act which would be justified if he had elected one way and would not be justified if he had elected the other way the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.

Now what is the fraud the Plaintiff alleges?

He says in para. 6 of his Statement of Claim of 13 March 1911, that on 4 July 1906 "the Plaintiff, not understanding that he was signing what purported to be a settled account, executed in favour of the said Defendant an acknowledgment and a mortgage over certain property therein specifically named to secure the repayment to the Defendant of a sum of $175,000 - together with interest thereon at 150 per annum"; he says that "he had not received more than one-fourth of the said sum of $175,000, but that he executed the said acknowledgment and mortgage relying on the fraudulent representation of the said Defendant that an account should be forthwith drawn up and the difference between the said sum of $175,000 and the amount actually owed by the Plaintiff should be paid to him": that the account has never been drawn up nor the difference paid.

With regard to the Plaintiff not understanding what the mortgage purported to be he (the Plaintiff) in giving evidence before me told his own Counsel that the mortgage was explained to him before he executed it, while with regard to the alleged stipulation that an account should be forthwith drawn up I interpret the word "forthwith" to mean "within a reasonable time," and having regard to the fact the first Defendant was a money lender by trade and kept the accounts and to the fact that the Plaintiff asserts that he had not received more than one-fourth of the $175,000 I should suppose by his using the word "forthwith" that the Plaintiff intended that the accounts should be rendered as soon as possible - saying within a month or even less from the date on which the mortgage was executed.

Nevertheless according to the Plainti