Case No. HT-08-331

[1951] 1 Ch 112, a party sought to strike out an action on the basis that a bank was nonexistent and yet at the same time it was seeking to prove in the liquidation of the bank. The Court of Appeal, in finding that there had been no election, referred to the phrase “approbating and reprobating” in Scottish law, or the English phrase, “Blowing hot and cold" and said this at 119 per Lord Evershed MR :“From the authorities cited to us, it seems to me to be clear that these phrases must be taken to express, first, that the party in question is to be treated as having made an election from which he cannot resile and, secondly, that he will not be regarded, at least in a case such as the present, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent. These requirements appear to me to be inherent. For example, in