AN ASSIGNED ESTATE.

Auckland Star, Volume LIV, Issue 256, 26 October 1923, Page 8

AN ASSIGNED ESTATE.

POSITION OP CREDITORS. ! SUPREME COURT RULING. (By Telegraph.—Own Correspondent.) HAMILTON, this day. His Honor Mr. Justice Stringer gave reserved judgment yesterday on an originating summons issued for tlie purpose of determining whether or not Jack Kola and Louvre Kola, farmers, of Hamilton, had the right to sign a certain deed of assignment dated June 16, 1022, made by John Raphael Lundon and Mary Lundon, for the benefit of their creditors, and to participate in the trust of the said deed. Plaintiffs ill the action were William Robert Lowry, farmer. Morrinsville; Herbert Griffiths, company secretary, of Hamilton; Krnpst .McGregor, solicitor, Morrinevillo; Edward Joseph Darby, fanner, I'uketurua, and Charles Parnell Parkereon, company secretary, Hamilton, trustees of the assigned estate of the Lundbns. His Honor said it was not disputed that defendants were creditors of the assignors, but it avas contended that, by their conduct, they had deh.tiTWl therneelves from participating hi the trusts of the deed. It was contondod that the proceeding; taken by do foil chin ts it:pon a judgment obtained by them (iguinst debtors in November, 1021. for the sum of i'lo4 7/4, we're hostile to and inconsistent with the tonus nf the deed. Debtors wore supplying milk 1o the 'I'atiia Dairy Company's factory, who. iin accordance'with the 'usual jivactice. j paid each niofflh for the milk nipplied I during the preeccding month, and the I defendants applied for an atttii.-hment order absolute against rartneye iluc to th(> debtors by t!u> Dairy C-impany. It was argued, therefore, th:it dcfimdanti , were endeavouring In obtain priority over other creditors, and wen; t'ms .-i.-unir antagonistically to the deed. It was. howevia-. stated in the aifiduvit of one of the defendants that tliis was not the I intention of tlio proceedings, and that ' tlte real object was to prevent the money? reaching the hands of the debtors, as had happened in respect of one of tiip monthly payments made by the dairy factory after the pxeriiTlion of tlte deed. The deed whs oNecuted by the debtors on June IC, clt'inugh ii did not become operative for tome time later, and on ■ Uinc 20, n payment for milk supp ,T >-.l .-■as made by t'if company to liv- ik-bt.jrs I direct After the execution of the d< td by the debtors, it was taken possrs-jion </f by debtor, J. R. Lundi-n, f>>r the [mrpose of obtaining exeouti;.!i l>\- liic creditors, and it was not uit'il ah -vVugust 12 that the deed was finally delivered to the trustees. U was upon to question, therefore, whether the deed became operative until tiiat date, having regard to the fact that notwithstanding the deed the debtors iiad obtained pi's session of some of tlie moneys which were intended to be assigned by it, and whether it was not unjeasonablu for defendants to take steps to prevent any further moneys-reaching the hand? of the debtors. As a matter of fact defendants obtained no priority of , advantage by the attachment proceedings, which, in his Honor's opinion, W'.-re not so definitely hostile to 'he deed as to bring the case within the principle of the decisions already referred to. His Honor was of opinion tlisK defendants were entitled to sign the deed and to participate in the benefits of the trusts thereunder. His Honor made no order as to costs, except that the trustees were to have their costs out oe" t'.ie assigned estate. Messrs. McGregor and MePherson, Morrinsville, acted for plaintiffs, and Messrs. MacDiarniid, Meats and Gray for defendants. .