Belcher and Others, Assignees of Maberly, a Bankrupt, v Prittie and Another
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1834 |
| Date | 23 January 1834 |
| Court | Court of Common Pleas |
English Reports Citation: 131 E.R. 962
IN THE COURT OF COMMON PLEAS
S. C. 4 Moo. & Sc. 295; 3 L. J. C. P. 85.
[408] belcher and otheks, Assignees of Maberly, a Bankrupt, v. prittie and another. Jan. 23, 1834. [S. C. 4 Moo. & Sc. 295; 3 L. J. C. P. 85.] M., a trader engaged in extensive concerns, was in perilous circumstances, and likely " to become bankrupt, although not suspected, from January 1831 to January 1832, when he actually became bankrupt. Among others, he owed his son 12,0001., which debt, upon his son's marriage, was settled on the son's wife. In May 1831 some of M.'s property in Middlesex was released from mortgage, and M., at the request of his son, on the 1st of July 1831, conveyed it to the trustees under his son's marriage settlement, as a security for or in discharge of the debt due from him to his son. The transfer was not registered, or otherwise made public, till after M.'s bankruptcy. A jury having found that it was not made voluntarily by way of fraudulent preference, or in contemplation of bankruptcy, the Court refused to grant a new trial. This was an action of trover for title deeds, brought by the assignees of Mr. Maberly a bankrupt, against the trustees under the marriage settlement of his son Colonel Maberly; and the question was, whether an assignment of a house in the Regent's Park, by Mr. Maberly to those trustees on the first of July 1831, was a voluntary assignment by way of fraudulent preference, and made in contemplation of bankruptcy. Mr. Maberly became bankrupt in January 1832. In 1828, he had given his son a bond for 12,3001. for money borrowed of him to that amount. The son married in 1830, and shortly before the marriage, this bond was assigned to the Defendants as part of the property to be settled on his intended wife. On the 1st of July 1831, Mr. Maberly assigned to those trustees, to be sold in discharge of this bond, the house in question in the Regent's Park; and his situation at that time, and the circumstances which led to the transfer were as follows:- He was carrying on the business of a banker at Edinburgh and in London, with (6) See Ditcham v, Chivis, 4 Bingh. 706. 10BING. 409. BELCHER V. PRITTIE :963 branch banks at Aberdeen, Montrose, and Glasgow ; he had a bazaar in London, which yielded a return of 20001. a year and upwards; and an estate in Surrey, which he farmed himself with a considerable outlay of capital, buying sheep to the number of 700 or 800, having stock worth some thousands [409] of pounds, and laying out large sums of money in substantial improvements, such as draining, and building a lodge to a handsome residence in which he lived at the time: this, and some other property, was estimated at 56,0001. by a surveyor called on the part of the Plaintiffs; the Defendants' surveyor estimated it at near 90,0001. The whole was subject to mortgages to about 68,6801. In the spring of 1831, Mr. Maberly was engaged in a negotiation for a loan to the government of Terceira; and though the negotiation closed on the 9th of June, he expected it to revive, and to produce him a considerable profit. From the beginning of 1831, however, the proportion of cash ready to meet the engagements of his banks was always small. In January 1831, the customers' deposits were about 95,0001.; the cash and bills in hand about 17,0001.: the deficiency about 77,0001. In April the deficiency was about 74,0001., in May about 51,0001. On the 15th of June the deposits were 98,0001. and upwards; the cash and bills about 31,0001.; the deficiency about 67,0001. On the 30th of June the deposits were about 101,0001.; ,the cash and bills about 26,0001.; the deficiency about 75,0001.; at which amount or thereabouts it continued till his bankruptcy in January 1832, without any effort on his part to convert his property into money to meet it. The statement of the balances of all his concerns was transmitted to him daily. Up to the 9th of May 1831, Mr. Maberly had also been concerned in partnership with Mr. John Baker Richards in a large linen manufactory in Scotland. In 1825, he borrowed of Mr. Leader 75,0001., to secure which he gave a mortgage on his real property, on his share in the linen manufactory, and on his bazaar; assigning also for the same purpose, two debts amounting to 86351., and certain life policies. Mr. Leader dying, his executors applied for payment of the 75,0001., when Mr. Maberly requested the matter [410] might stand over till Mr. Leader's son came of age. When that period arrived, Mr, Maberly declared his inability to furnish the money without transferring his share in the linen concern. It was accordingly sold to Mr. Leader's son, who had not been brought up to business, for 104,0001., and on the 9th of May 1831, after deducting the 75,0001., he paid Mr. Maberly the surplus, about 28,0001. This transaction was not made public, nor disclosed even to the clerks in the house, Mr. Maberly having stipulated that the announcement of the transfer might be postponed till a dissolution of parliament, alleging, first, that it might injure him with his constituents at Abingdon, who were engaged in a sacking manufacture; and, afterwards, that it might occasion a run on his Scotch banks, A further delay in the announcement being requested and refused in December 1831, he stopped payment on the 2d of January 1832. But though this transaction was not made public in May 1831, Mr. Maberly's ;son was apprized of it in June by one of Mr. Leader's executors, and according to Mr. Maberly's examination before a commissioner under the act of 1 W. 4, c. 22, came to his father, who was confined to his bed by illness, on the 13th of June, saying, "he understood from Masterman that examinant had sold his share in the linen concern to Leader, who had paid him 28,0001. in money, and had given up to him all the various securities, he, Leader held; and, therefore, he (the son) much wished that examinant should give to his wife's trustees, the Regent's Park house as a security for the payment of the bond which he had settled on her previously to the marriage:" he then said, "Will you therefore give Walford directions about it?" Examinant said he would, directly, and that his son was at liberty to call on Walfard and arrange the matter. Mr. Walford, who was the family solicitor, received on the 13th of June 1831, a letter from Mr. Maberly, at the [411] end of which he said, "Do convey over to the colonel's trustees the house and furniture in the Regent's Park, instead of the bond of mine which they hold, and which was settled on his wife. Let it be done immediately, and I will sign it." Walford said, that on the 15th of June he went to Mr. Maberly, who told him, as the lease was relieved from being any longer in charge to Mr. Leader, he wished to make it over to Colonel Maberly's trustees in discharge of a bond of 10,0001. or 12,0001., which was assigned on the colonel's marriage. Walford told him, the trustees could not take it in satisfaction of the bond; but that it might be made over in trust to sell and apply the proceeds, as far as it went, in 964 BELCHER V. PBITTIE 10 BING. 412- satisfaction of the bond. A deed was accordingly drawn up to that effect, and executed by Mr. Maberly on the 1st of July. Mr. Maberly further deposed before the commissioner, that he did not make the assignment spontaneously, but at the particular request of his son upon the occasion before described. That he did not contemplate bankruptcy, but thought a large surplus would remain on winding up his affairs. The assignment was not docquetted under the land revenue acts till the 7th of January 1832, nor enrolled at the auditor's office till the 12th of that month : on the 24th it was registered in the county. The debts proved under Mr. Maberly's commission were about 113,0001., the assets realised by the assignees about 68,0001. Between July and December 1831, there had been no pressure of creditors, or run upon Mr. Maberly's banks, and to most persons his failure was unexpected. He was described as being a person of a sanguine disposition. Upon these facts...
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