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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Beilby [1838] NSWSupC 65

In the estate of Beilby

conspiracy to defraud creditors - usury - legal practitioners, offence of practising after conviction of forgery - succession

Supreme Court of New South Wales

Burton J., 14 May 1838

Source: Sydney Gazette, 19 May 1838[ 1]

(Before Mr. Justice Burton, and a Military Jury,)

Charles Beilby, of Sydney, general dealer and merchant, was indicted for conspiring to defraud his creditors.

The information set forth that the defendant being an evil-disposed person, and wickedly and fraudulently contriving and intending to defraud, John Joseph Davies, John Campbell, James Norton, Alexander Brodie Spark, and other persons to whom he was indebted, did with force and arms at Sydney, on the 13th September, and divers other times and places, conspire, combine, and confederate to and with Charles Frederick Beilby, since deceased, and divers other persons, to the Attorney-General unknown, to defraud the said creditors.  The second count alleged that in pursuance of such conspiracy, the said Charles Beilby, and Charles Frederick Beilby, contrived to withdraw sundry property from the writs, suits, and attachments of the said creditors.  The third count charged the defendant with departing from his usual place of residence, for the purpose of hiding and concealing himself from the creditors, without having made arrangements for the payment of his debts.  The fourth count charged the defendant with executing a false assignment of land, value £500, to the said Charles Frederick Beilby, and that afterwards with intent to defraud the said creditors, he set up the said deed of assignment as good and valid.  The fifth count charged him with pretending that certain goods had been sold to one Rolla O'Ferrall, with intent to prevent the creditors from levying thereon.  The sixth count alleged that in pursuance of the conspiracy, the defendant removed, and secreted certain goods and merchandise, and pretended that other goods were sold in order to induce the creditors to compound for, and take a less sum than their just debts.  The seventh count charged the defendant with attempting to escape from the Colony.  The eighth count charged a conspiracy and alleged no overt acts.

The evidence of the witnesses in this case was very lengthy, and without the documentary evidence would not be understood; we shall therefore depart from our usual custom in important cases, and merely give a narrative of the leading facts in the case.

The defendant, who arrived in this colony in the female emigrant ship Layton, about four years since, was a merchant and general dealer, carrying on an extensive business at the corner of George-street and Barrack-lane.  In the month of September last Mr. Norton, the solicitor, who had been security for Beilby, and been compelled to pay the amount of the bond, obtained a judgment in the Supreme Court for £500 against him.  Mr. Norton, up to this time, had acted as solicitor for Mr. Beilby, and when he was about to take out execution for his judgment debt, Mr. Charles Frederick Beilby -- (who was committed along with his father to take his trial for the conspiracy, but who was accidentally drowned about two months since) -- called on Mr. Norton, and, telling him that his father's circumstances were very much embarrassed, asked his advice.  Mr. Norton's advice was that the affairs should be immediately placed in the hands of trustees for the benefit of the creditors generally, and gave him a memorandum which would serve as a draft for the deed of assignment.  In a day or two Mr. Norton received a note from young Beilby, stating that his father must take time before he decided upon such an important step, and would calculate the amount of the assets, to see if he could not keep his head up if breathing time were allowed him.  Mr. Smart, the auctioneer, had been spoken to to [sic] sell a sufficient quantity of the shop goods to meet Mr. Norton's judgment; no day, however, was fixed, and Mr. Smart, who lived nearly opposite, observing large quantities of the goods being removed daily, mentioned it to Mr. Norton.  Mr. N. resolved to see the defendant, and point out to him that the best way, if he wished to preserve his character as an honest man, would be to make an assignment of his goods at once, as delay could be of no possible use.  On his way to Beilby's house he ascertained that a large quantity of flour, which had only recently been purchased from Mr. Beilby for £1,030, had been transferred from Beilby to a gentleman from Hobart Town named O'Ferrall, in settlement of an alleged debt.  This portion of the case still remains a mystery, for it was not satisfactorily shown whether or not Beilby was actually indebted to O'Ferrall.  This struck Mr. Norton as being such a gross fraud on the other creditors that he resolved to take out execution, which he did, and placed keepers in the house immediately.  After this, the defendant applied to Mr. Norton to make out deeds transferring a piece of land at the North Shore, worth about £500 to Charles Frederick Beilby, the consideration to be £1000, payable in ten yearly instalments, commencing on the 1st January, 1840.  Mr. Norton, considering that the deed would be a fraud, refused to have anything to do with it, upon which the defendant wrote him an explanatory letter, stating that in transferring the land to his son, as his son was jointly answerable with himself for many of the bills, the land would not be placed out of the reach of the creditors, and that as soon as the land was transferred he would make over the rest of the property to his creditors, as he was tired of struggling against difficulties, and wished to have his affairs arranged.  Mr. Norton's scruples, however, were not removed, and he still declined having anything to do with the matter.  Mr. Lindo was then engaged to conduct the defendant's business, and as the deed was not drawn up by him, the fair reference is that he concurred with Mr. Norton.  A very few days after the opinion of Mr. Norton had been delivered, the deed of transfer was prepared by a person named Williams, a ticket-of-leave clerk, in the employ of Mr. Nicol Allan, and was executed on the 22nd September, the attesting witness being a convict named Sheedy, who was in Mr. Beilby's employ, and a free servant to Beilby named Richardson.  In this deed the consideration was alleged to be money in hand paid, and there was a document annexed, by which the household furniture and utensils, &c., were transferred to young Beilby.  The Sheriff seized the land, and it was put up for sale, when young Beilby attended, and cautioned the parties present not to bid as the land belonged to him, and at length the land was purchased by Mr. O'Ferrall for the sum of £530, the amount of Mr. Norton's debt.  A deed of trust was at length signed by which certain persons were appointed trustees for the benefit of the creditors, and Mr. G. S. Tucker, one of the trustees, went to the warehouse to take possession in the name of himself and co-trustees.  In the shop there was a desk which young Beilby claimed as his own, but from the extreme anxiety he displayed, Mr. Tucker suspected something, and refused to allow it to be removed, and as young Beilby persisted in taking it, a scuffle ensued, which ended in Mr. Tucker retaining the desk.  In this desk were found a number of letters and documents, which enabled the creditors to bring Beilby to justice.  There were a great number of letters from the defendant, (who during the whole of these transactions had been hiding from his creditors,) to his son, telling him to hasten the transfer of the land - to get legal advice if the transfer would be valid - to ask Lindo whether the bailiffs could not be expelled by force - to remove all the goods of his own, that Hughes would receive from him -- &c., &c.  Among the documents was a letter from the younger Beilby to the convict Williams, before alluded to, in which were a number of queries as to the transfer of the land, to all of which there were answers signed by Williams, as if he had been a barrister.  On obtaining possession of these documents, young Beilby, Hughes, and O'Ferrall were charged before the magistrates with conspiracy to defraud the creditors, and a reward was offered for the apprehension of the elder Beilby who walked into the Police-office one day, and surrendered himself.  Upon the creditors going to the premises on the north shore, they found property worth £300, concealed in a very suspicious manner in the roof of the house.  Upon these facts the four parties charged at the Police-office were committed to take their trials for conspiracy.

In opening the case, the Attorney General stated that the prosecution was originally a private one, at the instance of the creditor, but upon the depositions coming before him, he considered that there was no evidence to connect O'Ferrall and Hughes with the conspiracy, and consequently, although he had no doubt O'Ferrall had been guilty of gross usury and extortion, he had left them out of the indictment, and as the creditors more particularly wished to punish O'Ferrall, they had declined prosecuting the case any further, and he (the Attorney General) had therefore considered it his duty to bring it forward on public grounds.

The facts above stated were established by different witnesses, among whom was Williams, who acknowledged that the letter before alluded to was in his own hand-writing, and that the opinions were his own.  His Honor asked him in what condition of life he was when he gave those opinions: he replied that he held a ticket-of-leave, but that he now holds the Governor's letter, informing him that His Excellency Sir Richard Bourke sanctioned his application for a conditional pardon.  He acknowledged having been convicted of forgery, and transported.  His Honor said that he had the power of dealing with Williams summarily, but he should take the advice of his brother Judgds [sic] on the subject.  The length of the letters, &c., given in evidence may be guessed at from the fact of the Clerk of the Court being occupied nearly three hours in reading them.

Mr. Foster addressed the Court for the defendant at considerable length, but as His Honor afterwards withdrew six of the counts from the consideration of the Jury; we shall only give that portion of the learned gentleman's address which referred to the counts which were left to the Jury:-- ``The second part of the information charged him with the disposal of the land to his son, for the purpose of keeping it from the creditors.  As to the act itself, he would not attempt to dispute its illegality.  It was altogether indefensible, but the question was what were his views in so acting.  Was it to defraud his creditors?  Mr. Norton could not say on what date the application to draft the conveyance was made to him.  As for Mr. Norton, his integrity, honorable feelings, his character for legal knowledge, to which he (Mr. F.) could hear testimony, placed him above the breath of suspicion, but it could not be argued that because the defendant did not choose to act on his advice, that he must be criminal.  The Jury must look at the state of the defendant's mind at the time.  How did he speak of Mr. Norton in his communication to his son?  Why as a man who had attempted to over reach him; had attempted to gull him.  He thought he had a right to convey the property, and believing so, he had acted as he considered legally!!

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``He would now pass into the third count, which charged hith [sic] withdrawing property by means of a pretended sale to one Rolla O'Ferrall to defraud his creditors.  For what reason the sale was called a pretended one he could not imagine.  If it was a pretended sale as stated in the information, why, he would ask was not Mr. Rolla O'Ferrall by the side of the defendant if he conspired with him; he (Mr. Foster) was so far of a different opinion that he was afraid his client was not able enough to cope with Mr. O'Ferrall, and he had only applied to him as a person in England would do to the greatest extortioner. - He would refer them to a passage in one of the documents put in by the Attorney General to contradict such a position - It was this, ``If Mr. O'Ferrall does not pay the money, don't let him have the flour." - Did this look like a conspircy [sic] or like a pretended sale? - But how as the money to be applied?  He would refer to another passage as a satisfactory answer to this, ``If O'Ferrall does not pay Norton and Evans, don't let him have the flour."  This was the conspiracy - this was the fraud - to secure a debt of honour to two gentlemen who had advanced money without profit, or security, to help the defendant when he required it-  This count must, therefore fall to the ground, for however one party had taken advantage of the necessities of the other, it was clear that his client was only actuated by the most honourable feelings.  - He (Mr. Foster) could have taken legal objections in the course of the trial, but he would not avail himself of them: it was the defendant's wish that the case should go to the Jury on its merits."  The learned gentleman concluded by asking the Jury whether from the whole case it was not more likely that the defendant had been actuated by honorable although erroneous motives than any attempt to defraud his creditors.

No witnesses were called for the defendant.

Mr. Justice Burton, in putting the case to the Jury, said that the principle points to which he should draw the attention of the Jury were the transfer of the land and the sale of the flour, as he did not think there was sufficient evidence to establish the other counts.  With respect to the transfer of the land, the question was not only whether the defendant intended to defraud his creditors, but whether the son knew it.  With regard to the share, the convict Williams had in the transaction, His Honor said, that as he had been convicted of forgery, he rendered himself liable to be transported for seven years for practising as an Attorney, and it was a strong feature in the case that instead of going to Mr. Allan, in whose employ Williams then was, young Beilby went to this convict for advice.  In speaking of the sale of the flour to Mr. O'Ferrall, His Honor said that if the defendant really was guilty he could not see why Mr. O'Ferrall was not standing alongside of him.  The Jury retired about ten minutes and returned a verdict of Guilty.

Mr. Beilby who was formerly in custody of the Sheriff on civil process was removed to the criminal side of the prison, but was told that upon entering into sureties himself in £500, and two sureties in £250 each, to appear for judgement on the first day of term, he would be removed to the debtor's prison.

 

Dowling C.J., Burton and Willis JJ, 1 June 1838

Source: Sydney Herald, 4 June, 1838[ 2]

 

Regina v. Charles Beilby. - The defendant having appeared the Attorney-General prayed the judgment of the Court upon Charles Beilby, convicted of conspiring, to defraud his creditors.

The defendant handed in a memorial, in which he stated that thoughout [sic] the whole transaction he acted under the belief that he was both legally and morally right.  The conveyance of the land to his son, he executed because he thought that by the proper cultivation of it, it would support his family and assist to pay his debts.  The petition closed with a strong appeal to the mercy of the Court on account of the heavy domestic afflictions which have befallen lately.

Mr. Justice Burton went through the whole of the facts of the case and said, it was impossible under the circumstances that the defendant could think he was acting either morally or legally right, in withdrawing property from his creditors when he had not left them as much as would pay one-third part of their debts.  His Honor regretted that in punishing the defendant his innocent family would be punished by losing not only his protection and the comfort of his society, but also the support they are entitled to from his exertions.  The sentence which the Court was about to pass was a heavy one, but not adequate to the offence, and if an act now under the consideration of the Legislative Council had bee passed, he would have been liable to be transported for life.  The sentence of the court was, that Charles Beilby be imprisoned in Sydney Gaol for two years.

In the course of his address, His Honor said that as Mr. Lindo was not before the Court, it was only fair to state that he had made enquiries which perfectly satisfied him that Mr. Lindo had nothing to do with the drawing up the fraudulent conveyance.

Mr. Justice Burton then certified to the Court that during the trial of Charles Beilby, convicted of conspiring to defraud his creditors, and on which trial the conveyance of some land to the defendant's son was the principal ground of conviction, it appeared that the memorials respecting the registry of the deed were in the handwriting of a person named Williams, and that certain papers found on the premises of the defendant were in the handwriting of the said Williams.  His Honor then recapitulated the evidence given by Williams, the principal point of which was, that he convicted of forgery and transported to this Colony.  The papers alluded to by His Honor were letters from Frederick Beilby to Williams containing a number of queries on legal subjects, together with answers in Williams's handwriting.

The Chief Justice said, that the matter was so important not only to the individual concerned, but also to the honor of the profession, that the Chief Clerk must lay the papers before the Crown Solicitor, who will take such steps as he may be advised.

 

Dowling C.J., Burton and Willis JJ, 16 June 1838

Source: Australian, 19 June 1838[3] 

 

In the case of Charles Frederick Beilby, deceased. - Mr Kerr moved that administration be granted to Caroline Matilda Beilby, a relative.  The application was grounded on a Will with Codicil made by the deceased in favour of his sister Caroline Beilby, making over certain property at Middle Head, together with £250 due to deceased from his father Charles Beilby, for salary as a clerk in his counting-house; and on the affidavit of deceased's mother, which set forth that the property in question was duly made over by Will, and that the deponent, thinking that she had not long to live, had transferred her full right and power to Caroline Matilda Beilby, her daughter.

The Court said that the application came before it under circumstances of great suspicion, as it had reference to property which had already been before the Court in another form; and as the affidavits did not go far enough to satisfy the minds of their Honors, they would not grant the application until better assured that there was no jugglery in the matter. - Motion deferred.

 

Dowling C.J., Burton and Willis JJ, 30 June 1838

Source: Sydney Gazette, 3 July 1838[ 4]

 

In the will of Charles Frederick Beilby, deceased.  Mr. Kerr said that upon a former day he had moved that letters of administration be granted to the Registrar during the minority of the legatee, which the Court declined granting as the codicil was not sufficiently verified; since that he had procured an affidavit verifying the codicil, but as Mr. Manning had declined accepting administration, he moved that administration be granted to Sarah Caroline Beilby, the mother of the legatee.  Some discussion took place, as to whether a femme couvert can accept administration; but as Mr. Kerr was prepared with two cases to show that she could, the Court acceded to the application.

 

Notes

[ 1]See also Australian, 18 May 1838; Sydney Herald, 17 May, 1838. This case was also recorded in Burton, Notes of Criminal Cases, vol. 36, State Records of New South Wales, 2/2436, p. 1.

[ 2]See also Australian, 5 June 1838; Sydney Gazette, 5 June 1838.

[ 3]See also Sydney Herald, 18 June, 1838; Sydney Gazette, 19 June 1838.

[ 4]See also Sydney Herald, 2 July 1838.

Published by the Division of Law, Macquarie University