Now, say the defendants, we were deprived of these goods by the Government in November, 1922, and hence we cannot be responsible for them any longer. By itself, and the fact of seizure which resulted in the closing down of the defendants' branch in Russia altogether is formally admitted, that would be a good defence. But what took place after that event puts a different light upon the question of confiscation. In the first place the goods were handed to.this organization known as Sibselskosoyus, which now holds'a very large part of the capital of the defendant company. Then in February, 1923, (Exh. 4) the defendants are writing to plaintiff as if the goods were still under their control, though they knew of the seizure in November, 1922. Again I have before me an account between the defendants and the Creameries Union up to 30—12—22 in which the value of these goods still appears as an asset of the defendants; and finally I have certain correspondence of May and June, 1933, showing that this was an agreed arrangement, The effect, as was admitted quite frankly by Mr. Gibson, is that the defendant company now have the value of these boots standing to their credit in their books as against a creditor of theirs, the Creameries Union: the debt due to that creditor is by that amount reduced.
have been rather pressed with a difficulty as to the use of English law in this case: but neither party has pleaded that any other law applies; and while it is a rule that such matter must be pleaded, it seems to me that that party ought to plead it who relies on it. I think the right way to consider this case is as if the defendants had actually brought the boots into China, then it could hardly be contended that the plaintiff whose right to possession of them has been established would not recover them by action in this Court. And I so hold with regard to their value which is treated now as an asset of the company in the jurisdiction. One more matter: the claim is based both on contract and on tort; it is enough to say that I hold no tort proved; but the defendant company must account for these boots. If the parties cannot agree, the matter must be mentioned to me again.
Judgment for the plaintiff on those lines, with costs.
His Honour added that final judgment would not be entered up until the parties had come to an agreement on the figures or, failing such agreement, made further application to the Court.
Text read from the printed page and cleaned; old type leaves the occasional error.