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

Moore v. Faunce [1837] NSWSupC 45

false imprisonment, Brisbane Water, magistrate, action against

Supreme Court of New South Wales

Burton J., 6 and 7 July 1837

Source: Sydney Herald, 10 July 1837[ 1]

Thursday and Friday. - Before Mr. Justice Burton and a Special Jury.

Moore v. Faunce. - This was an action for false imprisonment.  The plaintiff in this case is a settler, residing in the district of Brisbane Water, who arrived in this Colony in the year 1831.  A charge of cattle-stealing was preferred against him, in which there was no evidence to support the felonious intent, but rather shewed that it was a matter of disputed property; notwithstanding this, the defendant, who is a Police Magistrate, committed him to take his trial and kept him in irons for fourteen days before he would allow him bail, and afterwards when one of his bail, Mr. Bean, was apprehended for cattle-stealing, he re-apprehended Mr. Moore on the ground of his bail being insufficient, and sent him to Sydney.  The evidence was nearly similar to the evidence in Mr. Bean's case, and there it is unnecessary to wade through it.  The plaintiff did not charge the defendant with acting maliciously, only illegally.  Verdict for the plaintiff, damages £250.

Counsel for the plaintiff, Messrs. Kerr, Foster, and a'Becket; for the defendant, the Attorney-General and Mr. Windeyer.


Dowling A.C.J. and Burton J., 17 July 1837

Source: Sydney Herald, 20 July 1837

Moore v. Faunce. - This was an application under similar circumstances, which was refused on the same grounds.[2 ]


[ 1] See also Dowling, Proceedings of the Supreme Court,  Vol. 140, State Records of New South Wales, 2/3325, p. 26; and see Bean v. Faunce, 1837; Donnison v. Faunce, 1837; Faunce v Cavenagh, 1838.  For commentary on these cases, see Bean v. Faunce, 1837.  See also the criminal trial reported in Sydney Herald, 9 February 1837; Sydney Gazette, 7 and 9 February 1837. For earlier proceedings in Moore v. Faunce, see Sydney Herald, 5 June 1837; Australian, 1 June 1837; Sydney Gazette, 3 June 1837.

[2 ] This refers to the decision made on the same day in Bean v. Faunce, 1837: ``Bean v. Faunce. - The Acting Chief Justice delivered the decision of the Court on the application for a non suit or new trial.  After reciting the circumstances of the case, His Honor said that the Judges were of opinion that the action had been properly brought.  Conceding to the defendant the general jurisdiction of having a right to lock up the plaintiff and do all that was necessary for his safe custody, still if the putting in irons was unnecessary, it was as much a substantive trespass as striking or any other injury, and therefore the action was properly brought in trespass, vi et armis, instead of in case, and accordingly the rule for a non-suit must be discharged.  As for the other grounds, that the verdict was contrary to evidence, and that the damages were excessive; they were matters expressly for the jury to judge of.  There had been evidence on both sides, and it was for the jury to take it into their consideration, and the judges could not say that the damages were excessive.  Had the action been in case instead of in trespass, under the evidence that had been adduced on the trial, the judge would have certified that the imprisonment was without reasonable or probable cause, and the jury would probably have given higher damages - New Trial refused."  (Source: Sydney Herald, 20 July 1837.)

See also Australian, 18 July 1837.

Published by the Division of Law, Macquarie University