TYRONE CRYSTAL LTD v. EUROPEAN ASIAN BANK AND ANOTHER

Headnote

EXECUTION - GOODS SEIZED UNDER WRIT OF FI FA - CONVERSION - LIABILITY OF BAILIFF ADD JUDGMENT CREDITOR

                A manufacturer of crystal ware entrusted its agent in Hong Kong with a valuable consignment of goods which the agent undertook to sell. The property in the goods was to remain with the manufacturer until payment for goods sold was received. The agent was entitled to retain the difference between the ex-factory invoice price and the price at which the goods were sold. The agent paid for and obtained the property in £25,000's worth of the goods having raised the money by pledging the whole of the consignment under its general security agreement with the bank. Most of the goods paid for were sold to the general public. The agent became financially embarrassed and unable to continue the original arrangement. Discussions took place between the agent and the manufacturer as to what should be done with the rest of the consignment which was lying at the godown to the agents order, but before any step was taken the agent suffered judgment at the hands of the 1st Defendant which caused a writ of fi. fa. to issue and by its solicitors instructed the bailiff to seize the goods of the godown in execution of judgments. The 2nd Defendant was the under bailiff who seized the goods but there was no evidence as to which under bailiff caused the goods to be sold, as they were in auction at a gross under value and without reserve. The manufacturer was able to buy back some of the goods but nevertheless suffered substantial losses. It brought an action against the 2nd Defendant for conversion by reason of the seizure and sale of the goods and in negligence in respect of the sale at a under value and against the 1st Defendant as the procurer of the conversion. It contended that in relation to the alleged conversion of the goods the 2nd Defendant could not rely on Order 47 rule 7(3) as the rule had been made ultra vires the rule making power of the Rules Committee and that in any event the 2nd Defendant had not made reasonable enquiry as to the true ownership of the goods. Both Defendants argued that on its true construction the agreement between the Plaintiff and the agent was one of sale under which property in the goods had passed and that in any event the action was not maintainable as by reason of the pledge the Plaintiff had no right to immediate possession.

Held

1.	That the agreement between the Plaintiff and the agent was truly one of the agency not sale and at the date of the seizure the Plaintiff was either in constructive possession of the goods or the anent was no more than a bailee at will.
2.	In the circumstances, following dicta of Lord Porter in United States of America v. Dolfus Mieg at Cie S. A. [1952] AC 582 at 611 the plea of jus tertii failed.
3.	The seizure and sale of the goods amounted to a wrongful conversion.
4.	The Plaintiff succeeded in its claim against the 1st Defendant as procurer of the tort.
5.	The claim against the 2nd Defendant failed in conversion as Order 47 rule 73 was not ultra vires and the 2nd Defendant had not neglected to make reasonable enquiry as to the true ownership of the goods and the claim also failed in respect of the alleged negligence sale as it had not been proved that it was the 2nd Defendant who had been responsible for the arrangements.

Action No. 11547 of 1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. They make very fine, lead, crystal glassware in Dungannon, Northern Ireland. It is mouth-blown and hand-cut. It vies in quality with the better known product from the Republic. It yields very little to its rival in price. I am told that in the shops you might expect to pay up to HK$100.00 for a single goblet. Anyone who was around the salerooms of Lammert Brothers on 21st September, 1982 had the chance of a bargain. More than 15,000 pieces of this excellent crystal, including some decanters, with an ex-factory value of over HK$800,000.00 were knocked down in one lot for less than HK$30,000.00 - that is about $2.00 each. How did such a thing come about?

2. The maker of this fine glassware is Tyrone Crystal Limited (Tyrone). In about August 1981 Tyrone came to a marketing agreement with Viners International Limited in Hong Kong (Viners). It was that Viners should act as Tyrone's agent for the sale of the crystal in Hong Kong and account to Tyrone at the ex-factory invoice price for any crystal sold. The difference between the invoice price and the sale price less marketing costs was to be Viners' commission. The property in the unsold Mass was to remain with Tyrone and would not pass to the customer until payment had been received by Tyrone. A letter from Viners which is said to confirm this rather untidy arrangement appears at page 201 of the bundle of documents, and is worth reading in full. It is dated 18th September 1981, is for the attention of Mr. Donnelly and is signed by Roy Russell, the then Managing Director of Viners.

"We refer to our marketing arrangement with you and confirm that all crystal glass received by us from you is sent to us and will be received by us as agents on your behalf in the sale of the glass. Pending sale the ownership of the glass will remain in Tyrone Crystal Limited and ownership will only pass from you to the Purchaser of the glass who shall purchase through us when we have paid you for the glass.

 

        In this regard the sum of £25,000 which we have paid to you as an advance payment or the glass has been paid in order to allow us to dispose of £25,000 worth of the glass upon receipt of same. We will then in the course of sale pay over to you by payments of £5,000 monies received by us for the sale of the glass as it is disposed of by us. We will therefore transmit to you immediately each sum of £5,000 as it is received above the said sum of £25,000 and in the event of any breach of this Clause then we acknowledge that we are unable to transfer further ownership of glass to anyone from you so long as the breach continues.

 

        We further confirm that we will operate only one Banking Account in connection with our transaction with Tyrone Crystal Limited and we undertake to furnish to you a monthly copy of our Bank Statement relating to that account so as to furnish proof to you that we are complying with the above terms. We acknowledge that it is the intention of both our Companies that we shall sell only glass to Purchasers which has been paid for to Tyrone Crystal Limited.

 

        We trust this clarifies the position regarding our relationship and the arrangement concerning the sale of the glass."

3. There was a history to this agreement to which I do not think it necessary to refer in any detail. Suffice it to say that Tyrone had contemplated a marketing agreement with another company as a consequence of which two consignments of glassware were already on the high seas at the date of Tyrone's agreement with Viners. Viners were to take delivery of these consignments under their later agreement to be used as stock for sale which was to be by mail order. The payment of £25,000.00, referred to in the letter, effectively freed stock to that value. The payment had been made by irrevocable, documentary credit opened by the Hong Kong & Shanghai Bank in favour of Tyrone on Viners application. At that time Viners were overdrawn at the Bank and offered security for the facility in the form of a receipt dated 21st October 1981 with the effect of pledging either the whole or part of the crystal under its general security agreement with the Bank.

4. In all, three consignments of crystal arrived in Hong Kong during October and November 1981. The value of the these consignments was £108,601.37. They were stored at Yee Lim Godown. Between about November 1981 and at the latest August 1982, Viners had managed to sell very nearly all the stock for which payment had been made which meant that at that date something over £80,000 worth of crystal still lay at the godown which in Tyrone's eyes remained its property. By this time, August 1982, Viners were in financial difficulties. They owed money to the European Asian Bank which issued proceedings and on 1st September 1982 obtained judgment for a substantial sum in default of notice of intention to defend. On 4th September 1982, the judgment creditors' solicitors filed a praecipe for a writ of fi fa which issued to the bailiff on the same day. Also on 4th September solicitors for the judgment creditor wrote to the Chief Bailiff as follows :

"         We refer to our Writ of Execution issued herein.

 

        We are informed that goods owned by Viners International Limited are at present being stored at Yee Lim Godwon & Cold Storage Limited, Kwai Lok Street, Ha Kwai Chung, New Territories. The value of these goods is approximately HK$800,000.00. We would be grateful if as a matter of urgency you would arrange to levy execution on those goods rather than at the registered office of Viners International Limited."

That letter was' written and sent with the knowledge and express authority of the judgment creditor which knew as a result of a previous conversation between one of its officers and a Mr. Murray, who had taken ovor the running of Viners, that Tyrone claimed ownership of the crystal. On 14th September, a bailiff from the Chief Bailiff's office went to Yee Lim Godown armed with the writ of fi fa and seized all the remtill stotck of Tyrone crystal. After what I think can be said to be a low key advertising campaign - one notice in an English language newspaper described the crystal as "glass containers" - the whole of the seized stock was sold at auction for a net sum of HK$29,055.00. The bailiff had himself valued the stock at more than twice that amount and I do net think it could be argued that the failure to obtain a better price was not due to negligence on somebody's part.

5. When the Tyrone management got to hear what had happened, as they did from Mr. Murray who returned from leave a day or so after the auction, they were rut out more than a little. Particularly they were anxious that their reputation should not be compromised by the appearance on the market of their product at very low prices. They engaged enquiry agents who tracked down some 11,223 pieces, being the greater part of the crystal sold, which Tyrone was able to buy back.

6. Now in this action Tyrone sues the bailiff, who executed the writ of fi fa by seizing the goods, in conversion and in negligence, and it sues the judqnent creditor as the procurer of the conversion. I have named the judgment creditor already, it is the European Asian Bank and 1st Defendant: the bailiff is Mr. Chui Yun Tak and 2nd Defendant to the action.

7. Common to the defences of both is an averment that the Plaintiff is not entitled to sue in conversion on the ground that it did not have an immediate right to possession at the date on which the goods were seized. There are really four matters relied on:

(1)	the letter of 16th of September constituted an unregistered bill of sale,
(2)	the letter constituted a charge within Section 80(2)(c) or (f) of the Companies Ordinance,
(3)	amore general submission that on the facts Viners should be fund to be buyers rather than agents,
(4)	the pledge of the crystal by Viners to Hong bong and Shanghai Bank.

The first two matters, if made good, were pleaded as creating the relationship of seller and buyer as between Tyrone and Vipers. But the argument has not been pursued by Mr. Wong who takes the view that I am bound by authority against his proposition and Mr. Osborne was content to follow Mr. Wong's lead. I make it clear that the point has not been abandoned for the purposes of arty appeal. The third and fourth submissions live on. As to this first of them, Mr. Wong has relied upon a decision of the House of Lords in John Towle & Co. & Whyte ⁽¹⁾ which in my judgment goes no further than to say that the court should not necessarily accept the parties own description of their relationship but should look at the course of dealing to see whether they stand as seller and buyer or principal and agent. Applying that test I find that the true relation between Tyrone and Viners was that of principal and agent. It is not just that they so describe themselves but the terms of their agreement are also apt. In any event since the proper in the goods had been expressly reserved to the Plaintiff I do not see that it would have availed the 1st Defendant to show that Viners had agreed to buy a buyer in possession within section 27(2) of the Sale of Goods Ordinance may pass title but it does not follow that his wrongful conversion of the goods leaves the seller without remedy. That will depend upon whether or not the seller has an immediate right to possession.

8. The general security agreement between Viners and the Hong Kong & Shanghai Hank was entered into on 2nd July 1980. It gave Viners a facility, inter alia, in respect of documentary credits. Clause 7.01(a) provides:

"As continuing security for the payment of all sums in which the undersigned may from time to time be actually or contingently indebted or liable to you for any reason and on any account:

 

(a)

the undersigned hereby pledges and agrees to pledge to you all bills, documents of title, transportation documents' insurance policies and other documents representing or relating to Goods and the Goods represented thereby and such documents and Goods shall not be subject to any lien, charge or other encumbrance in favour of any other person."

The agreement gives tile bank power to inspect, secure and under certain circumstances, one being the occasion of Viners assets becoming seized or subject to execution under any judgments to sell the goods which have beer pledged. Now although the amount of the documentary credit was £25,000, I can see nothing in the application for the import loan, or in the receipt or in the terms of the agreement for security itself which limits the banks' recourse to any portion of the goods or ever to any particular consignment. So I conclude that as between the Hong Kong & Shanghai Hank and Viners the pledge extended to the whole of the stock at the down. The Plaintiff insists, however, that all Viners could pledge was up to £25,000.00's worth of the goods and that is the exert at most to which the Hong Kong & Shanghai Bank's interest can be put before Tyrone's. I do not agree. Tyrone had put Viners in possession of the goods as their agent to other with documents of title. Viners had been clothed with authority to pledge. Although the matter has not been fully argued before me and was never explicitly pleaded, I do not think that Tyrone could have resisted a claim by the Hong Kong & Shanghai Bank to enforce its right of security against the whole of the stock. However, it seems to me that my opinion as to that is not malarial to the issue between the parties in this action. Here the defendants seek to set up the superior claim of a third part to defeat or limit that of the Plaintiff. Whereas in England the position is now covered by section 8 sub-section 1 of the Torts (Interference with Goods) Act 1977 and rules of court made thereunder, in Hong Hong it is the common law which falls to be applied. The rule was always that a plea of jus tertii would not prevail against a plaintiff in actual or constructive possession or who had possession through a bailee at will; for which proposition no better authority is wanted than the dicta of Lord Porter in United States of America Dolfus Mieg et cic S.A⁽²⁾ as Applied by Hinchcliffe J. in WilsonvLombank Ltd. ⁽³⁾. I have not concerned myself as to whether Tyrone retained constructive possession or whether more properly Viners were bailees at will. I apply Lord Porter's test and conclude that at the date of the seizure Tyrone had the right to demand from Viners the return of the crystal. There is no question on the evidence before me but that by that September 1982 the original agreement had come to an end and that Viners were open to instruction from Tyrone as to what should be done with the stool the godown. I hold therefore that a claim for conversion does lie at the suit of the Plaintiff untrammelled by any opposing right in the Hong Kong & Shanghai Bank.

9. I turn then to the case against each of the Defendants and I find it convenient to deal in the first place with that against the 2nd Defendant.

10. It is put in two ways; that by seizing or by selling the goods he committed the tort of conversion; and that he negligently caused loss to the true owner by causing them to be sold at a gross under-value.

11. Prima facie from what I have said already it would follow that the seizure was wrongful and amounted to a conversion on the part of the 2nd Defendant. However Order 47 r 7(3) provides:-

"    (3)      Where any goods in the possession of an execution debtor at the time of seizure by the bailiff or other officer charged with the enforcement of a writ, warrant or other process of execution are sold by such bailiff or other officer without any claim having been made to the same, the purchaser of the goods se sold shall acquire a good title to the good so sold and no person shall be entitled to recover against the bailiff or other officer, or anyone lawfully actin under the authority of either of them, except as provided by section 46 of the Bankruptcy Ordinance, for aril sale of such goods or for paying over the proceeds thereof Prior to the receipt of a claim to the said goods, unless it is provided that the person from whom recover is sought had notice or by making reasonable inquiry have ascertained that the goods were not the property of the execution debtors: Provided that nothing in this rule contained shall affect the right of any claimant who may prove that at the time of sale he had a title to any goods so seized and sold to any remedy to which he may be entitled against any person other than such bailiff or other officer or purchaser as aforesaid."

This is met by the argument that Order 47 is ultra vires the Rules Committce's rule making powers and is therefore of no effect and then, diminuendo, that even if the rule is infra vires the 2nd Defendant might have ascertained that the crystal was not Viners property by making reasonable inquiry. As to the first proposition Mr. Neoh will forgive me, I hopes if I do not reproduce each step in his carefully constructed argument. I accept, his main contention that if the Rules Committee did not have statutory authority to make Order 47 then following the decision of the Court of Appeal in Gohind Mohan v McElney⁽⁴⁾ it is indeed of no effect. If at all, the Rules Committee derived its authority from either section 54(2)(h) or 54(2)(i) of the Supreme Court Ordinance which provide as follows:-

"Without prejudice to the generality of subsection

(1), rules of court may be made for the following purposes:

(h)	regulating the execution of the process of the Supreme Court, including -

	(i)	the prohibition of judgment debtors and persons against whom civil claims are made from leaving Hong Kong and ordering the payment of compensation to them in prescribed circumstances;
	(ii)	ordering the appearance of judgment debtors or officers of corporate judgment debtors for examination and their examination; and
	(iii)	the arrest and imprisonment of judgment debtors;
(i)	regulating matters which could heretofore be or which have heretofore been provided for or regulated by rules of court;"

As to (h) and (i) Mr. Neoh makes the point that "regulate" cannot encompass the power to make substantive law. But on a liberal construction I cannot support that view. In any event he has authority against him. In an unreported judgment of the Full Court, Mr. Justice Kempster had to consider a similar submission with regard to the undorpinning of Order 49(b). At the date of his judgment the sub-paragraphs (i) to (iii) which I have just read out were not part of the rule. He had this to say:

"As to the validity and vires of the relevant rules Mr. Litton has not pressed his argument which was never put on a basis hither than that of doubt. Section 54(2)(h) of the Supreme Court Ordinance reads:

 

 

The Supreme Court has power to imprison debtors by reason of the application of common lair pursuant to section 3 of the Application of English Law Ordinance Cap. 88. It also has jurisdiction in that the Code of Civil Procedure had previously so provided by rule. Section 54(2) (i) of the Supreme Court Ordinance provides that rules may also be made:-

 

"regulating matters which could heretofore be or which have heretofore been provided for or regulated by rules of court".

 

In my opinions, the relevant Rules of the Supreme Court are intra vires."

I believe that I had expressed a similar view in the earlier unreported case of Producers Finance & Investment Limited v Tse Yee Wan and another ⁽⁵⁾ . It is true that in neither case was the point of construction taken but the subsequent amendment of section 54(2)(h) by the addition of sub-paragraphs (i), (ii) and (iii) has made it plain; in my view, that the word "regulating" is used in such a way as to comprehend the power to make substantive law. Regulating can have no different meaning in sub-paragraph (i) Since it is conceded tact the content of Order 47(7)(3) is a matter which could and was previously regulated or provided for by Rules of Court, it follows that the rule is intra vires the power extended to the Rules Committee by section 54(2)(i). It is net strictly necessary therefore for me to consider Mr. Neoh's separate point as to whether or not the rulc is intra mires section 54(2) but out of deference to his argument I shall. The point is this; because section 54(2)(h); sets out a number of matters which fall within the scope of the sub-paragraph, by application of the maxim "expressio unius est exclusio alterius" a mattor which is not so set out must fall outside its scope. For my part I have difficult in seeing how the maxim can be applied at all but the question is resolved altogether in my judgment in favour of the list not being exhaustive by the legislatures use of the word "including" to introduce the three sub-paragraphs which were, in any event, only brought into the section by an amendment which post dates the main events of this action.

12. If intra vires Mr. Neoh accepts that Order 47(7)3 operates to protect the 2nd Defendant in relation to an action in conversion whether founded on the seizure of the Plaintiff's goods or their sale. He does Pots for example, contend that on a strict reading of the rule the Plaintiff is only protected as to the sale. He is right, of course, from a practical point of view because any damage flows from the sale and not the seizure. But he does contend that the 2nd Defendant ought to have made reasonable enquiries which might have revealed the identity of the true owner. That would be enough to deprive the 2nd Defendant of the rule's protection. The rule is in similar terms to section 15 of the Bankruptcy and Deeds of Arrangement Act 1913 which Mr. Justice Glidewell had to consider in Observer Ltd. v. Gordon ⁽⁶⁾. That was a case in which the sheriff had seized a number of pianos which had beer brought to the judgment debtors' premises for reconditioning. The Judge approached the question in this way:

"There are thus two questions, both of which the master considered. First, was it reasonable for the sheriff not to make any inquiries, if not, secondly, might reasonable inquiries have revealed that some of the pianos were owned by third parties?"

In this case, the 2nd Defendant asked at the godown to whom the crystal belonged. He was told that it was Viners'. If I adopt Mr Justice Glidewell's approach, which I propose to do, the question becomes : was it reasonable for the 2nd Defendant not to sake any further inquiries in the light of what he had been told by the warehouse-keeper and in the light of the 1st Defendant's solicitors' letter. I think it was reasonable for him not to make any further inquiries. The plaintiff's claim against the 2nd Defendant fails in conversion.

13. That is not the end of the matter. It is conceded by Mr. Osborne that Order 47(7)3 offers no protection against a claim for loss arising from the negligent conduct of the sale. He is supported in that view by the decision of Mr. Justice Glidewell to which I have referred. Here the crystal was sold without reserve at a gross under value. It went for less than halb the bailiff's own uninformed estimate. It was only advertised the day before and I have given a sample of the kind of advertisement which was placed. As I have already indicated, I would have had no hesitation in finding that whoever it was from the bailiffs' office who conducted the sale was negligent. But was it the 2nd Defendant or, if not, can he be made liable for the negligence of the person responsible. Original the Attorney General was sued but for reasons unknown to me the 2nd defendant was substituted by amendment. A rather esoteric pleading point was taken that by admitting having been respensible for returning the writ the 2nd Defendant had admitted having bee responsible for the sale. The 2nd Defendant amended with leave to make pair that such an allegation was denied; but he did not give evidence and nor did anyone on his behalf to the effect that it was someone other than the 2nd Defendant from the bailiffs' office who arranged for the auction. In those circumstances and from the admitted fact that he sized the goods, Mr. Neoh invited me to infer that it was indeed the 2nd Defendant. I am unable to draw that inference. The endorsement of the writ of fi fa is in more than one hand and at the very least is ambiguous on the point. Nor is there any principle of law known to me which would make the 2nd Defendant liable vicariously for the negligence of another bailiff from the Chief Bailiff's office in arranging for and carrying cut a sale by auction.

14. It follows that the Plaintiff must fail against the 2nd Defendant on all fronts.

15. I go now to the case against the 1st Defendant in conversion. It depends solely upon the letter of 4th September 1982 which is admitted to have been written on the express instructions of the 1st Defendant. The Plaintiff says that by so instructing their solicitors to write to the bailiff in such terms the 1st Defendant procured the wrong and relies upon the English Court of Appeal decision in Morris v Salberg ⁽⁷⁾. The general rule is that the executicn creditor is not liable for wrongful execution upon a correctly endorsed writ. There is an exception to that rule certainly in the case where the executicn creditor intermeddles by directing the sheriff or bailiff to levy the amount of judgment on anothers' goods and that direction takes the form of an endorsement on the writ of fi fa (see Morris v Salberg). But is the exception confined to those cases where the direction is endorsed on the writ. I think not. In Smith v Real ⁽⁸⁾ a managing clerk of solicitors acting for a judgment creditor told the sheriff in an informal conversation that the goods of the judgment debtor were to be found at a certain address. Execution was levied against them whereafter it turned out that they belonged to the Plaintiff. The decision non-suiting the Plaintiff rested upon the solicitors' clerk having no General or express authority. I can find nothing in any of the judgments to support the view that the direction can only implicate the judgment Creditor if indorsed on the writ. In Norris v Salberg the direction to the sheriff had beer endorsed on the writ as in the earlier case of Jarmain v Hooper⁽⁹⁾ Neither is authority for the proposition that a direction in another form will not render the execution creditor liable. And in principle why should it? Fry L.J. in Morris v Salborg at page 620 cites with approval from a judgment of Chief Justice Tindal in Wilson v Tumman ⁽¹⁰⁾:

"The principle on which this case must be decided seems to me to be very clearly laid down by Tindal, C.J., in giving judgment in Wilson v. Tumman. If the Defendant Tumman had directed the sheriff to take the Goods of the present plaintiffs under a valid writ, requiring him to take the goods of another person than the defendant in the original action, such previous direction would undoubtedly have made him a trespasser, on the principle that all who procure a trespass to be done are trespassers themselves, and the sheriff would be supposed not to have taken the goods merely under the authority of writ, but as the servant of the plaintiff. But when the sheriff, acting under a valid writ by the command of the Court and as the servant of the Court, seizes the wrong person's goods, a subsequent declaration by the plaintiff in the original action ratifying and approving the taking, cannot, upon the distinction above taken, alter the character of the original taking and make it a wrongful taking by the plaintiff in the original action."

It seems to me that the principle is wide enough to cover the facts of the instant case. In Point of fact Mr. Wong for the 1st Defendant has not submitted to the contrary. He has argued instead that the procurement of the conversion has net been pleaded. He put Mr. Neoh on notice but Mr. Neoh declined the invitation to amend. Mr Neoh contends that paragraph 11 of the Statement of Claim is sufficient for the purpose. I agree. Otherwise the 1st Defendant's answer to the claim was in regard to matters not argued, as I have explained above, or which I have considered in relation to the common defences.

16. So in my judgment the Plaintiff does succeed in his claim against the 2nd Defendant.

17. Like everything else in this case the question of damages has been hotly contested. At the very end I was greatly helped by Counsel agreeing the amount of orgstal seized at the godown. I hope it will prove to be no more than a question of arithmetic to work out the order which should follow from my decision as to the measure of damages. The Plaintiff recovered the bulk of the crystal. Having done so, I find that it was in no worse position with regard to that quantity of crystal than it would have been had possession been retaken at the date of seizure. I allow therefore such cost of mitigation as was reasonably involved in recovering the crystal and disallow all expenses incurred in shipping it back to Northern Ireland, cleaning and repacking. The cost of purchasing the crystal is recoverable at £5,140.45 as are the costs incurred in finding it at £214.12. The claim for the commission and expense of negotiating the purchase is excessive at £5,180.00. It was not necessary for anyone to come out from Northern Ireland and I think £500.00 would have boon more than adequate renumeration for some local agent. I disallow all other items on Mr. Neoh's list.

18. As to the unrecovered items the number and value of which are to be calculated from figures agreed between Counsels I think that the correct measure is the ex-factory price at the date of seizure which on the evidence must be taken from same date previous to the date of seizure. I shall hear Counsel on this, but I suppose some credit has to be given for the amount recovered in the sale.

Further argument

Judgment for Plaintiff in the sum of £25,061.57 with costs against 1st Defendant.

Action against 2nd Defendant dismissed with costs.

(1) (1873) 29 L.T. P. 78

(2) [1952] AC 582 at p. 611

(3) [1963] 1 W.L.R. 1294

(4) [1983] H.K. L.R. 308

(5) unreported High Court Action No. 9637/83

(6) [1983] 1 W.L.R. 1008

(7) [1889] 22 Q.B.D. 614

(8) [1882] 9 Q.B.D. 340

(9)  6 M & G 827

(10) 6 M & G 236