Bean v Faunce -- This was an action for false imprisonment, damages laid at £1, 000.  Mr. a'Beckett opened the pleadings, and Mr. Kerr addressed the Jury.  The defendant, Alfred Tasker Faunce, was lately a Captain in the 4th Regiment, having retired from the Army, was, in October last, appointed Police Magistrate at Brisbane Water.  The plaintiff arrived in the Colony in 1824, bringing out with him sufficient capital to obtain a maximum grant of land, which he selected at Brisbane Water, and he was appointed to the Commission of the Peace, and continued to act as a Magistrate until 1831, when in consequence of embarrassment his property at Brisbane Water was sold, and then not being a man of property in the neighbourhood, his name was left out of a subsequent Commission.  Shortly after this period, the plaintiff entered into an agreement to superintend Mr. Manning's establishments at Brisbane Water, and Mr. M. also appointed stock at a distant station.  As his general agent at Brisbane Water, Mr. Manning gave Mr. Bean authority to purchase stock, and Mr. B. purchased several lots from Gray, Cavenagh, and Richards.  Among the cattle purchased from Richards there was a cow called Blindberry, which was taken into the stockyard early in 1833, and branded J M in the presence of Richard Cape and several stockmen.  About ten months afterwards, a draft of cattle was sent to an upper station in charge of Cape, and when about ten miles away, Blindberry escaped from him, and returned to Tuggerah Beach.  A few weeks afterwards, Cape wrote to Bean, telling him that the cow had got away, and that a man named Meadows claimed several of the cattle, among which was the cow Blindberry, and he requested Bean to send him a receipt for this cow.  Mr. Bean sent a receipt, saying that as the cow could not travel he should let her remain at Tuggerah until she got fat, and then slaughter her; and he requested Cape not to mind Meadows, as he was a very bad character, and not give him up any cattle.  Shortly afterwards, Meadows went to Bean and claimed the cow, when Bean told him he did not believe him as he had purchased her from Richards, Meadows said that McGrath, one of Mr. Richards' stockmen, knew she belonged to him, upon which Mr. Bean told him that if McGrath would say she was his he should have her, but Meadows did not go to McGrath, who lived within a few miles, but went away.  This was in February, 1833, and in the following April, Mr. Bean happened to go to Mr. Donnison's when he found that Meadows had to the cow in the stockyard, and was about slaughtering her.  Mr. Bean remonstrated with him, and told Mr. Donnison that the cow did not belong to Meadows, and he was not allowed to kill her.  Meadows persisted in claiming the cow, and said that Smith, one of Mr. Richards' stockmen, knew she was his, and went away for the purpose of fetching Smith; as he did not return by night the cow was turned out.  Donnison said the cow was always troublesome to him, and was leading his cattle astray, upon which Bean said he would sell it to him, and he might kill it.  After this Bean came to Sydney and saw Richards and Manning, and at the request of Mr. Manning made out a statement of all the property  belonging to Mr. M. in that quarter, and amongst other cattle, mentioned that there was a cow claimed by Meadows, and that if he made good his claim Mr. Richards would allow another cow for her.  A duplicate of this statement was made out and forwarded to Mr. Watson at Brisbane Water, in order that he might see if it was all correct.  Mr. Bean then left Mr. Manning's employ, and went to Mr. Bettington's at Hunter' River, and at the settlement of accounts, instead of giving him money, Mr. Manning gave him an order to take the cattle at Tuggerah Beach, consisting of ten cows, one bull, nine steers, six yearlings, and seven calves, in consequence of which Blindberry became the property of Mr. Bean.  On his way to Hunter's Rover Mr. Bean stopped at Mr. Donnison's and after selling him some cattle as agent for Mr. Dangar, told him that he might have Blindberry at the same price, which Mr. Donnison agreed to give him.  While Bean was in Sydney he received a summons from Mr. Warner, who was then Police Magistrate at Brisbane Water, to answer a charge about the cow, preferred by Meadows, upon which Bean wrote an explanation to Mr. Warner, who was so satisfied that he returned the money for the summons to Meadows, and told him he must go to a Civil Court; and of this Donnison must have been aware, being a Magistrate on the Bench at the time.  When Bean sold the cow, he told Donnison that as he had heard no more about it, he supposed Meadows had given it up.  He then proceeded to slaughter the cow; Meadows heard of it and went to him and complained, on which Mr. Donnison told to go to Bean, and there the matter rested.  On the 1st November last, Bean went to Brisbane Water to give evidence in a case where Mr. Moore was being prosecuted by R. Cape, and the evidence he gave was not pleasing to Cape; and Mr. Donnison, who was on the Bench, intimated to Captain Faunce that he knew the character of both parties, and requested him to act with discretion.  Mr. Bean said that it was a noted fact that Richard Cape was a cattle-stealer, and that his own father said so.  On this evidence Bean was afterwards summoned for perjury on the oath of R. Cape; the summons was granted on November 5, returnable on the 14th, although the Court sat every day.  On the 14th, the case came on to be heard, when the only evidence that was adduced was that of Cape, and Captain Faunce said that he did not think the case was clear, especially as he himself had heard that Cape's father had accused him of cattle-stealing, but he would not dismiss the case but would send it to the Attorney-General for his opinion.  As soon as the case was over, Cape said I accuse Willoughby Bean and Henry Donnison of cattle-stealing, and here is a man that can prove it, pointing to Meadows, who was examined, and after his deposition and that of Cape had been taken, Captain Faunce asked Bean and Donnison to know if they had any documents, or had anything to say.  Bean said he was too much surprised to say anything, and did not know whether he could find any account, but he would try.  Captain Faunce said there was a strong case, but he would allow them to go on their parolle, and send the papers to the Attorney-General for his opinion.  Two or three days afterwards, Bean found two documents, which he took to Captain Faunce; one was a memorandum from Mr. Manning, authorising him to take possession of the cattle at Tuggerah, and the other a memorandum taken by himself when the cattle were branded.  Mr. Bean requested Captain Faunce to send these documents to the Attorney-General, which he promised to do, and Mr. B. then handed him Cape's letter, which Captain Faunce said he thought was against him.  Up to this time, the learned gentleman said they had only to complain of the ignorance and imbecility of the defendant, but after that he thought they would be clearly able to show that he was actuated by malice.  The letter which he considered went against Bean he sent to the Attorney-General, but the other document he kept back, although he promised to send them.  A few days after the trial, Mr. Bean, accompanied by Mr. Watson, was walking in the street, when they were met by Captain Faunce who handed Mr. Bean a letter, saying there is a letter for you from Brisbane Water.  Mr. Bean was much surprised at being accosted by the defendant, and opened the letter in the presence of Mr. Watson, and found that it was only a blank envelope enclosing the documents that had been handed to Captain Faunce at Brisbane Water.  This he (Mr. Kerr) considered one of the strongest proofs of malice in the whole case.  Why were the documents suppressed?  If the defendant considered they were immaterial, why did he not send them to the Attorney-General as he had promised to do?  After the documents had been handed to the defendant, Mr. Bean came to Sydney and enquired at the Attorney-General's Office to know whether they had received the depositions, and if so, whether they intended to act on them, and he heard that they were ridiculous and would be thrown out.  Bean saw the Crown Solicitor, and asked him if the cases were coming on, as, if they did not, he should seek redress; upon which Mr. Fisher answered, well then we must defend him.  Bean then asked how they could defend a man who had acted as he had done, and observed that a man who had been guilty of such folly had no right on the Bench.  This it is supposed reached the ears of the defendant, and aggravated his malice.  On the 2nd January, 1837, the plaintiff was at home at Brisbane Water, when he was arrested by two armed constables, and taken to the Police Office, where he found Donnison in custody.  The case of Meadows' cow was gone into, and Captain Faunce said the case was very strong, and he must commit them, Donnison then asked for bail, but was told that there must be two Magistrates to bail people.  They were then sent to the lock-up and detained until the 23rd, when they were put on board a vessel bound to Sydney; on the 14th, although it was admitted by the constables that no attempt had been made at escape, they were all put in irons, and kept so until the following morning.  There was no excuse for not sending them up before, as half a dozen vessels sailed for Sydney while they were kept in custody .  The defendant even went so far as to keep back the mail, although he took an[?]car himself and pulled down the river in a vessel that was about sailing.  In order to send his despatches.  During all the time that Bean was detained, there was no warrant for his detention, and if there had been the defendant would not have been justified; the law is very strict with regard to Magistrates who keep people in Gaol under pretence of re-examination for an unreasonable time, and parties always obtained heavy damages under such circumstances.  In the case of Davis v. Capper, reported in 4th Carrington and Payne, which was an action for false imprisonment of fifteen days, where there was no malice, but only an illegal detention, the Jury returned a special verdict to the following effect:- `We consider Mr. Capper acted bona fide, but as the period for which he detained the plaintiff for re-examination was unreasonable, we find for the plaintiff damages £10;" so that it was quite evident that it was for a reasonable time or not.  In this case there was no warrant; and when a copy of the warrant was demanded on the 18th, a warrant was made out, directed to the Gaoler at Sydney; but what authority was there for the detention at Brisbane Water? the detention there was altogether illegal, and shewed the malice of the defendant; and if there had been any necessity to detain Mr. Bean at Brisbane Water, a warrant for that purpose should have been in made out.  [The learned gentleman here quoted a paragraph from Burn's Justice, to shew that it was only lawful to put irons on prisoners under committal when there was reason to suppose they intended to escape.]  There was one part of the case which he had forgotten to mention: after Bean had been to the Attorney General, he went back to Brisbane Water and asked Faunce what he intended to do in the case, when Faunce replied, that the matter must lie in abeyance until the identity of the cow had been determined in the Court of Requests.  Was there ever, he would ask, so silly a remark - what had the identity of the cow to do with it the question was, did the plaintiff steal it.  When the defendant was remonstrated with for putting the plaintiff in irons, he said they have spoken ill of me, and this was the only reason he gave; but when afterwards he was told that he was liable to punishment, he said that he was afraid they would escape, as one of Donnison's men had said he would go through fire and water for his master, and that at any rate he would send them to Sydney in irons; and when he was told that if any thing happened to the vessel, and they were drowned, he would be liable to be tried for murder, he said then he would march them to Gaol in handcuffs.  What could induce these remarks but malice, and a resolution to shew every possible annoyance?  On the 18th, because there was a violent gate of wind and heavy rain, he ordered the constable to take them on board the vessel, upon which, Bean sent a protest, stating, that in the state of the weather it was impossible to get out to sea, and it was no use sending them on board a small craft to remain eight or ten days on deck before they could sail.  On the 24th, however, they were put on board the Betsy, and got to Sydney as soon as if put on board in the wind and rain.  On the 27th January, Bean was lodged in Sydney Gaol, and was admitted to bail; and on the 29th February was tried and acquitted.  It might be said, that as Bean was tried, there must have been some sort of a case; but it shewed what opinion the Attorney-General had of the case, when he indicted Donnison for killing the cow with intent to steal the carcase, and Bean with being accessory, when they had been committed, Bean for stealing and Donnison for receiving; and on the trial, the Judge told the Jury there was no case against Bean and he must be acquitted.  All the actings of the defendant had been illegal; he issued his warrant without a sufficient oath of a felony having been committed, almost without a tittle of evidence.  When a man uses his power as magistrate to degrade and oppress and gentleman every way his equal, it was the duty of the Jury to make him suffer for it.  If the Jury did not visit the conduct of the defendant with the punishment it deserved, how could any man live in this Colony - every settler would be liable to the same kind of treatment?  If any ignorant magistrate was sent to any part of the Colony why should he not act the same?  Oh, but it might be said, there are always old magistrates to give advice; so there was in the present case; but what did the defendant do with him?  Why, drag him from the bench and place him at the bar.  What damages could repay the plaintiff for the injury he had received in name, fame, and reputation, through the malice and ignorance of the defendant?  The damages were laid at £1000, and the defendant must be worth more than that; a company of foot was worth a larger sum; but, if the facts that were on his brief were proved, the Jury ought, if possible, to make him a beggar.  The learned gentleman concluded by quoting the opinion of Lord Mansfield, that the inquiry in these kind of cases was how the heart stood, for if there was malice, the defendant could not cover himself from punishment with the thin veil of the law.

The following witnesses were then called for the plaintiff:-

Mr. Randolph John Want - I am one of the plaintiff's attorneys; about the 7th or 8th of March last, I met the defendant in company with Mr. O'Reilly; Mr. O'Reilly asked me if we wee concerned in the action of Donnison and Faunce; I said we were instructed to commence actions against Captain Faunce by all three, and asked the defendant where he lived, and he said at the barracks with his brother, and I could serve the notices there or on Mr. O'Reilly.

Cross-examined - This was in Pitt street; I knew that he had been residing at Brisbane Water, but I understood he had resigned; I do not know how long he remained in Sydney after this conversation; I asked the Crown Solicitor to accept service of notices, but he refused, saying I must send them to Brisbane Water; I do not know whether this was before or after the conversation with Faunce and O'Reilly.

Mr. Henry Richards, clerk to Messrs. Unwin and Want - I served Captain Faunce in the barracks with a notice of action on the 9th March; this notice being defective in not having the attorney's residence at the bottom, I left a copy of this notice at the place where I had seen Captain Faunce, at his brother's room; on the first occasion Captain Faunce told me to leave all notices at his brother's rooms.

Cross-examined - I had no communication with Captain Faunce between serving the first and second notice; when I served the second notice I was told Captain Faunce was not in Sydney; I did not understand that Captain Faunce's instructions referred only to the time he remained in Sydney.

Mr. Kerr called on the Clerk of the Court to read the notice, when the Attorney-General objected to its being read, on the ground that according to the Act of Parliament any Magistrates against whom actions were brought, was entitled to have notice of action served personally or at his usual place of residence, one month before the commencement of the suit, and was proceeding to argue that the service in this case was not good, when His Honor said, that unless there were some authorities exactly in point he was so clear on the point against the Attorney-General, that it was useless for him to argue it, he would however receive the point.  The notice was then read.

John Edye Manning, Esq. - I have known Mr. Bean about six years; in 1838 I entered into an agreement with him to manage my property at Brisbane Water; I gave him instructions to purchase cattle, and he bought several herds for me; I do not recollect authorising him to sell; he did supply several stations, Fattorini's and Donnison's; I recollect his purchasing from Gray, Cavenagh, Richards, and several others; I find among my papers several musters of cattle made by Mr. Bean; this is one dated April, 1834.

The Attorney-General objected to this paper being read; Captain Faunce was in no way connected with it; whatever papers were handed to Captain F. to show that Bean was not guilty could be admitted, but what took place in 1834 between Mr. Manning and Mr. Bean was not admissible.

Mr. Kerr contended that he had a right to prove that Bean was not guilty of the offence he was charged with; he gave an explanation to Captain Faunce respecting the cattle which they were now about to prove to be correct.  Mr. Foster followed the same argument.

His Honor was clearly of opinion it was not admissible if Captain Faunce did not see it before the committal of Bean.

Mr. Manning continued - I directed Bean to buy and sell cattle; I received a letter respecting the church at Brisbane Water, in which this subject was incidentally mentioned; I wrote a letter in answer; this memorandum is signed by me.

Cross-examined - This memorandum was given about the time Mr. Bean left my establishment; I do not know what ten cows Bean was to take; I never saw them; he was to take the cows at the Tuggerah Beach station; I saw one set of depositions that came up against Bean; I had them in my possession one night to look over; as well as I can recollect Mr. Bean was charged with selling a cow that was claimed by a person whose name I do not recollect; I could not give the Attorney-General any satisfactory information on the subject; I did not find these musters until after the trial; I communicated with Captain Faunce, but I cannot say whether before or after the committal; I do not recollect that the Attorney-General told me his motive in handing me the depositions; I think I was actuated by curiosity and a strong interest in the fate of Bean, who I consider to be as honorable a man as any in the colony; by these returns I find that the cow in question has been mentioned several times; I find this expression in a return April 1834, ``there is a cow claimed by George Meadows, and if he establishes his claim, Mr. Richards, from whom she was bought, replaces her by another."  I do not recollect Mr. Bean telling me he had been summoned for stealing this cow; I had some communication with Mr. Warner on the subject of this charge; I do not think Mr. Bean would steal cows for me; the cow in question I take to be one of the ten handed to Mr. Bean; she must have been, there were only ten cows running about the house at Tuggerah; I afterwards re-purchased some of the cows from Bean; I do not know whether the cow in question was one of them.  Mr. Bean was my general agent at Brisbane Water, and required no particular authority to sell a cow to Mr. Donnison; after Mr. Bean left me I sold the estate; but kept some cattle under the charge of Mr. R. Cape.

Re-examined - This is an authority in writing to Bean to sell cattle to Donnison; I recollect giving it to Bean.

Mr. Henry Watson - I was present at an investigation in November 1836; Mr. Cape required a summons against Mr. Bean for perjury; Mr. Cape brought the summons down to my house and served it on Bean himself; I was not present when the case of perjury was heard, I recollect a subsequent investigation when Mr. Bean produced some document to Captain Faunce; I believe these to be some of the documents; Mr. Bean requested Captain Faunce to append them to the depositions and send them to Sydney; there were other documents, there was a letter from Mr. Cape to Mr. Bean; Captain Faunce said the letter made against Mr. Bean; Captain Faunce promised to append all the documents to the depositions; after the trial in the Supreme Court I was with Mr. Bean, when Captain Faunce met us in King-street and handed a letter to Mr. Bean, saying it was from Brisbane Water; I saw Mr. Bean open the letter, and it contained these two documents; I was present when Captain Faunce committed Mr. Bean; it was on the 4th January; there was a conversation about bail, but I cannot repeat it as I did not distinctly heard it; Bean remained in the Police Office that night and I believe the following.  After that they were removed to the lock-up, and remained there about a fortnight; I saw him several times; at first he had no irons on; I heard he had irons on but did not see him; I heard that several vessels sailed while Mr. Bean was in the lock-up; I know the Thomas and Mary sailed on the 10th or 11th of January.

Cross-examined - The Thomas and Mary usually anchored about nine miles from the Lock-up; she did not touch at any part near the Lock up; I cannot say what vessels left the anchorage place near the Lock up; I am cousin to Mr. Bean; I did not give notice to Captain Faunce that the vessel was about sailing; Mr. Bean did not desire me; I have not got the envelope to which the documents were returned; Mr. Bean put it into his pocket; I think that Mr. Bean told me that the envelope was in Captain Faunce's hand writing; to the best of my belief Captain F. said, here is a letter from Brisbane Water; I do not think he said, here are the papers you gave me at Brisbane Water; it was eight or nine days after the trial.

Mr. John Gurner proved that the action was commenced on the 17th April; and produced the information against Henry Donnison and Willoughby Bean, charging Donnison with killing a cow with intent to steal the carcase, and Bean with harbouring, receiving, maintaining, and assisting the said Donnison, knowing he had committed the felony aforesaid.  The verdict was Not Guilty.

Mr. James Drew, Chief Constable at Brisbane Water. - I know the plaintiff; on the 2nd of January last I apprehended him on a warrant signed by Captain Faunce; I took him to Brisbane Water watch-house; this is the warrant; on the 4th of January he was examined, and that night he slept in the Police Office; on the 5th he went to the lock-up; on the 11th he was ironed; he remained in irons until the following morning; the irons were put on by direction of Captain Faunce, to keep him safe; Mr. Bean left the lock-up on the 23rd January; I went with him; we went on board the Betsy, where we remained until the 26th from contrary wind: there was rain for a week before; there is no cabin to the Betsy; we got to Sydney on the same day; there was only room for two below at a time; there were five prisoners and two constables on board; I delivered Mr. Bean at the gaol.

Cross-examined - The usual course when I apprehend a prisoner is to take him to the watch-house; on the night of the 2nd we slept at Mr. Moore's; it was a great indulgence to be allowed to sleep in the Police Office; they applied for permission to sleep there; there is no Magistrate at Brisbane Water but Captain Faunce and Mr. Donnison; there is no other Magistrate within fifty miles; I recollect Mr. Warner coming to Brisbane Water; he was Police Magistrate before Captain Faunce; there was no second Magistrate there before Mr. Warner came; it was about four or five o'clock in the evening when they were ironed; Mr. Donnison resides about four miles from the lock-up, and has many convict servants; I reported to Captain Faunce that I did not consider the prisoners safe; the bottom of the lock up was quite rotten; Mr. Donnison asked leave to go home; Captain Faunce asked my opinion and I told him I did not think it safe to let him go; I said so because when I went to apprehend Bean one of Mr. Donnison's men said he would go through fire and water for his master, and so I thought they might rescue him if he went with a single constable; it was after this that Captain Faunce said ``these men must be ironed"; the conduct of the prisoners while in custody was quiet; the usual course is to iron free persons when they are committed for trial; from the 4th to the 14??th they were not ironed; nothing was said in my hearing that would make me apprehend a rescue from the lock-up; I never knew a constable to be placed in a lock up that was insecure along with the prisoners; I heard Mr. Donnison say that if his servants rescued him it would be an open rescue and the constable would be held blameless; Carpenter was ordered to take Mr. Donnison home, but he refused for fear of a rescue; the following day Mr. Plaistowe rode up to Captain Faunce and told him Bean was ironed, and he directly sent me an order to take them off; I did not report to Captain Faunce that I had ironed them; after the irons had been taken off I went to Captain Faunce and told him that they had been in irons when he said ``you were very quick about it"; when Captain Faunce said ``these men must be ironed" I said ``very well, Sir"; I put the irons on; as soon as Captain F. found that I had so understood him, he sent me a written order to take the irons off by Mr. Plaistowe: I considered from Captain Faunce's observation the next morning that he was surprised at my having put on the irons; I put the irons on two or three hours after I was ordered by Captain Faunce; when Captain Faunce said ``these men must be ironed," I considered it was an order; I recollect that from the 10th to the 20th January there were seven or eight days southerly wind; they could not go before the Betsy sailed, on account of the southerly wind; while in the lock-up they wee allowed pen, ink, and paper, and wine, and any person could visit them that asked Captain Faunce; they were allowed to walk about outside the watch-house at certain hours; I considered they were treated with favour.

Re-examined. - I was in the 4th Regiment before I went to Brisbane Water; Mr. Bean slept in the Police Office two nights; he made no attempt to escape; from the 4th to the 14th Mr. Bean walked about for two or three hours every day; I had no other warrant but this; prisoners are always sent by water from Brisbane Water; Donnison said it would be a good job for Captain Faunce if he was to run away: all persons who are committed for trial are put in irons: Frost was a prisoner; he was committed for trial, but his irons were taken off when he turned evidence against Mr. Moore.

By the Court - There are two rooms in the watch-house; one of them is occupied by the watch-house-keeper; there was no one in the other room but Donnison, Moore, and Bean.

Richard Gorman, lock-up-keeper at Brisbane Water - I was not present when a summons was issued against Mr. Bean for perjury; I know nothing about it; Mr. Bean was committed to my custody in January; the warrant is at home; I got no written warrant with Mr. Bean; Mr. Bean was in my custody but I cannot say how long: I went on an inquest to Mangrove Creek with Captain Faunce, and when I came back he was gone; Mr. Plaistowe spoke to me about the prisoners after they had been put in irons; I put the irons on by directions from the Chief Constable; I did not tell Mr. Plaistowe that Captain Faunce had given me orders to put the irons on; nobody told me to say the warrant was at home; I saw Mr. Bean in irons; I put them on; the irons were put on about four o'clock on the 14th, and were taken off about nine o'clock on the 15th; I know a government man named Frost; his irons were taken off but I do not know for what; they were put in irons because the ground sleepers were rotten, and I would not take them in charge; they had been in my charge four or five days when they were in irons; they were committed for cattle-stealing, for a cow that was stolen belonging to Meadows; it was a very heavy charge and three of them being committed under the same circumstances they wee ironed; they had one iron on each; we picked out three of the lightest pairs; I do not know the weight of the irons, there are no scales served out to weigh them; when we get a bushranger we always put the irons on, they are served out by Government; they were allowed to walk out, and they never attempted to make their escape; there was a report though the district as I heard from Mr. R. Cape that they would escape; Captain Faunce was not at the lock-up while they were in irons; Mr. Donnison spoke to Captain Faunce while he was in my custody; the lock-up may be twelve feet every way; it may be eight feet high.

Cross-examined - The Chief Constable did not tell me at the time that he had Captain Faunce's order for putting the men in irons; he has told me so since; I was present when they were committed; Captain Faunce said he must commit them, and Mr. Donnison and Mr. Bean said he could do nothing else with the oaths that were before him, the watch-house joins the Police Office; whenever Captain Faunce came to the Police Office the prisoners could speak to him if they wished.

Re-examined - I heard Mr. Bean say Captain Faunce could do nothing else but commit him; there was no one present but Mr. Bean, Mr. Donnison, Mr. Moore, and Captain Faunce, I stood at the door.

Mr. Henry Donnison - I am a Magistrate residing at Brisbane Water; in April, 1830 I was present when a charge of perjury was made against Mr. Bean by Richard Cape; I went into the Court while Mr. Bean was under examination; I declined acting, and told Captain Faunce it was not a case within his jurisdiction and the result was that the matter was referred to the Attorney-General; I told Captain Faunce that no one who knew Cape would believe him on his oath; before that case was finished Cape made a charge of cattle-stealing against Bean, he brought Meadows in by the collar of his jacket, saying this man has lost a cow, and I accuse these two men meaning me and Bean, of stealing it; I was sitting on the Bench; Meadows seemed unwilling to make the charge, he said he had lost time in coming there and he wanted some recompense; the case was commenced by the examination of Meadows; he said he had been summoned on the perjury case but he was not examined on it; Cape and Meadows were examined the first day; Bean was charged with stealing and I was charged with receiving the cow knowing it to have been stolen; the first day I sat on the Bench, the next day I at first stood at the bar, and being lame Captain Faunce allowed me to sit; at the end of the third day Captain Faunce asked us what we had to say when I handed in a written paper to Captain Faunce, pointing out that the case merely depended upon the evidence of Meadows, who was a man of bad character, and that their own witnesses shewed there was a bad feeling against me for having as a Magistrate put down grog-selling and cattle-stealing; the matter was then referred to the Attorney-General; I came to Sydney and called at the Attorney-General's Office and saw Mr. Fisher, and asked him if we could not put in bail then, in case we should be committed, if the Attorney-General thought there was a case; he said we must be committed first.  I drew Mr. Fisher's attention to the fact of their requiring two magistrates to admit to bail for felony, and there was only one at Brisbane Water upon which Mr. Fisher said he was sure the Attorney-General would take bail, and he pledged himself that we should not inconvenienced, I went back to Brisbane Water and saw Captain Faunce, who said he had received a private letter from the Attorney-General, who considered it a matter for a civil Court; I received a similar communication from Mr. Pogson my attorney.  I wanted Captain Faunce to dismiss the case, but he said it must wait until the issue of the civil suit in the Court of Requests.  On the day after Christmas day I saw Captain Faunce, who said I had been uncharitable in writing him a letter; I said that he had been equally uncharitable in saying out of court that he believed the guilty; he said that he did believe so, and was justified in saying so.  On the 2nd January I was apprehended, and on the 3rd I saw Mr. Bean in custody.  A letter from the Attorney-General was shewn to me, in which he said, that in consequence of further information which Captain Faunce had sent him, he had returned the depositions for Captain Faunce to use his ministerial discretion.  On the 4th these documents were handed to Captain Faunce by Mr. Bean, as a proof that he got the cow from Mr. Manning, and believed her to be Richards; he asked Captain Faunce to append them to the depositions, and he said he would.  I heard the examination, after being severely pressed, he admitted he had these documents, but I think he did not produce them.  I remember a person named Lang being present at the examination; he was not examined on this charge; he was not examined; Captain Faunce would not examine witnesses on our part; he said, ``in my ministerial discretion, I'll hear no more," and we were committed.  I said there is generally a little ceremony observed of asking a person if he has any thing to say why he should not be committed, but Captain Faunce said he would hear no more.  I applied to be admitted to bail, and said that Mr. Fisher had said arrangements should be made for bail being taken by him as a single magistrate, but he said he had been directed by the attorney General not to take bail.  I said to him ironically, Oh, Captain Faunce, after the evidence you have heard to day, you cannot help committing us - upon which he said you had better send for your friend, Mr. Warner, to bail you.  Mr. Warner is a bitter enemy of mine.  On the 10th or 11th of January Mr. Warner came, and I spoke to him about bail; Mr. Bean was not present.  We were taken to the lock-up on the 4th or 5th; we were detained there until the 23d.  There was a good deal of caprice - sometimes we were let out a good deal, sometimes we were locked up.  We were in the immediate custody of Gorman until the 19th, when Gorman accompanied Captain Faunce to Mangrove to hold a Coroner's Inquest, and then we were in custody of the flogger and constable Carpenter.  On the 14th we were put in irons; Drew and Gorman were there; Gorman put mine on.  I said, Chief Constable, who gave you orders to put the irons on, he said Faunce; I asked him if he had a warrant, he said the Captain's word was enough for him, and he put the irons on.  A man of mine came, and I told him to go for Mr. Plaistowe.  Mr. Plaistowe came the next morning and went to Captain Faunce, and returned with an order from Captain Faunce to have the irons taken off.  We saw Captain Faunce almost daily, and repeatedly had conversation with him.  I was under examination on the 3rd, 4th, 9th 10th, and 11th, on other charges; we walked about sometimes, but we were capriciously treated, one day allowed to go out and another not.  There was a vessel sailed about the 8th or 9th, I saw her leave the creek.  We left the lock-up on the 23d; we applied repeatedly to be allowed to go.  We were ordered on board on the 18th, in a very heavy gale of southerly wind, but we protested against it, saying that it was no use to send us on board the vessel to lay on her bare decks, when we could not get out.  On the 23rd we went on board; there was a place where two persons could be below.  We got to Sydney on the 26th January, and were admitted to bail on the 31st; we were tried and acquitted on the 27th February, without calling any witnesses or making any defence.

Cross-examined. - The Judge directed the Jury to acquit Mr. Bean, and there was some talk about putting him in the box as a witness for me.  The Judge made a lengthy charge, but his Honor is not remarkable for brevity.  Mr. Warner and me had a difference about magisterial business.  When Moore was examined, Cape protested against my sitting as a magistrate, as I was so involved with Mr. Moore that I could not judge fairly of the case.  Mr. Warner said there was enough to commit Mr. Moore, when I said that Mr. Warner had shewn such a feeling that it was impossible justice could be done there, and the case had better be adjourned to Sydney or Maitland.  Mr. Warner then entered a protest, that I was unfit to act as a Magistrate because I had bought beef of Mr. Moore.  The perjury case was not dismissed - it was sent to the Attorney-General; the evidence of Meadows was not tendered.  Cape was not pleased when Captain Faunce said he would go no further with the case.  I know Meadows got a summons out some time before about this case.  Bean did not appear to my knowledge.  I do not know Meadows attended three times at the Police-office, nor do I believe he did. - Richard Cape said his object in making this charge was to prevent Bean from giving evidence at the trial of Mr. Moore, and said, that as Mr. Bean, which Captain Faunce said was very fair.  The room at the lock-up is about nine feet square.  (The witness was here examined by the Attorney-General, at great length, about his conduct during the time he was at Brisbane Water, which the Judge declared to be wholly irrelevant.)  The examination lasted from the 14th to the 17th November, and then we were on our parolle [sic] to the 4th January.  Captain Faunce never told me he had heard we intended to run way.  Captain Faunce gave me leave to go home after we had been committed; but afterwards, Captain Faunce said that the constable was afraid to take me home.  I have not a penny interest in the cotter Laura; it has been reported that I have, but it is entirely wrong.  I heard that there were many passengers going in the Betsy, which is a crazy boat of fourteen tons, and I suggested that we should be sent by the Laura or Traveller; I believe Captain Faunce interfered and managed even to the minutest particular.  Captain Faunce lives about a mile and a half from the Court-house, I sent Mr. Plaistowe with the protest respecting going on board the vessel in the gale of wind, and I did not see Captain Faunce afterwards.  I often urged Captain Faunce to send us up; I mentioned six vessels to Captain Faunce that left for Sydney; the Betsy went to Sydney and returned while we were in custody; she sailed on the 8th, Mr. Warner did not come until the 10th, and the day after that, when our bail had been rejected, Lawry, the master of the Fidler, came and said his vessel was about sailing.  There was another examination going on respecting me; from the 5th to the 10th nothing was done; Mr. Warner came to give evidence against me and Moore for conspiracy, perjury, subornation of perjury, and cattle stealing; I was committed; there was an information filed against me for the cattle-stealing but afterwards withdrawn; I don't suppose Captain Faunce knew anything of Mr. Bean until he came to the district in October; on his arrival he placed himself on a condition to be on shy terms with us; the proceedings between me and Warner were before him, and it might have been on that ground that he was delicate, but as the matter had been before two Attorneys General, he might have supposed that if there had been anything in the matter it would have been enquired into.

Re-examined. - I was examined several days on various charges; Mr. Bean had nothing to do with them, he was a minor felon and might have been sent away on the 4th; I asked Mr. Warner to bail us, and he said it rested with Captain Faunce.  The irons that were put on me had been on a black fellow; Mr. Bean's iron was very light; it was only rivetted [sic] on one leg; there was a shackle for the other leg, by which we hung it up to our middle; Mr. Bean could take his iron off and on, and did so in the course of the night.

The Court then adjourned until

Wednesday. - At a few minutes past ten the case was recommenced.

Mr. J. Plaistowe, an Attorney of the Supreme Court - On the 12th January I arrived at Brisbane Water; I saw Mr. Bean in the lock-up; on the following day I applied to Captain Faunce to admit him to bail, when Captain Faunce said that Mr. Warner was of opinion with him that it was not a case for bail; on the evening of the 14th I received an intimation that Mr. Bean and Mr. Moore were in irons; I went there the next morning and saw them in irons; they had one iron on one leg and the other iron tied up the side; Mr. Bean's irons were the heaviest; I wanted to weigh them, but was not allowed; I asked the lock-up-keeper why they were ironed, and he said he had orders from the Chief Constable, and the Chief Constable said he had orders from Captain Faunce; I went to Captain Faunce, asked him if there was any warrant, and he said they were put on by his order; I requested that they might be taken off, and said that in the event of his refusing I should take an affidavit from the gentlemen and come up and lay the matter before the Judges; I had a long conversation with Captain Faunce, and he was very reluctant to order them to be taken off but did so; and on my pressing him for a reason for putting the irons on, he said that a constable of his had heard a man of Donnison's say he would go through fire and water for him, and that in a conversation with Mr. Donnison, Mr. D. had said, ``if my men were to rise and take me from your constable how could you help it?" these two circumstances he said struck him so forcibly that he put them in irons; I said I did not see how this could affect Bean and Moore, and his answer was they were connected with Mr. Donnison; Captain Faunce at last gave me a written order to the Chief Constable to strike the irons off; I stated that if he sent the prisoners to Sydney in irons, and anything happened to them on the passage, he would be liable to be tried for murder; to which he replied, ``well, if I cannot send them in irons I will march them in handcuffs;" on the Friday when I asked Captain Faunce to admit them to bail, I asked for the warrants, when he directed the clerk to make them out; on the Tuesday I served written notices, demanding copies of the warrants, on Captain Faunce, on the Chief Constable, and the lock-up-keeper; Captain F. referred me to Mr. Scott, the Clerk of the Bench, and either Mr. Scott or one of the constables handed me this warrant; when I first applied to Scott, he said that it was not usual in that Court to make out warrants of commitment when a person was already in custody on a warrant; I got the apprehending warrant before I got the warrant of commitment, and being certain that there was no warrant for commitment, and consequently I made the written demand; there was a vessel called the Betsy, which was about tailing for Sydney, and I asked the captain about taking Mr. Bean up, when he said that he had already ten passengers, and I told Mr. Bean that it would be very uncomfortable, but he said would rather go, and I told Captain Faunce, who said they should go by the first vessel if they chose; and upon the assurance of Captain Faunce that they should go in the next vessel, they were satisfied, but on the following day I heard that they had been ordered on board forthwith; there was then a very high southerly wind and torrents of rain, and they appeared to be much alarmed about going in the state of the weather, and I advised a protest to be drawn up and served it myself on the defendant, and the consequence was they were not sent by this vessel; I left the district before they sailed.

Cross-examined - I had no acquaintance with any of them but Mr. Bean; I do not recollect telling Captain Faunce that I was a particular friend of Mr. Bean; I said I had a very high opinion of him; I think I told Captain Faunce that I was their legal adviser; Mr. Bean's irons were considerably heavier than Moore's; they were the usual irons put on men in ironed gangs; I have repeatedly expressed strong opinions respecting this case; I think I told Captain Faunce that there would be no rescue and that there was no intention to rescue; Captain Faunce said that if I would give him an assurance, as a lawyer, that on my laying the matter before a Judge he would order the irons to be struck off; I gave him that assurance confidently; it is possible that Captain Faunce said me ``do you object to handcuffs!"  I do not think he said so; I dined with Donnison, Bean, and Moore at the back of the lock-up before the irons were put on; Captain Faunce did not tell me they meditated an escape and he had put them in irons for safety; before the irons were on I requested leave for Donnison to go home, and Captain Faunce said he should, and regretted that he must send a constable with him or otherwise it would be an escape; I saw copies of the depositions, which I was informed were furnished by Captain F.; he was not compelled to do so; he might have been actuated by generosity, or by ignorance of his duty.

Re-examined - Scott said it was not customary to make out warrants of commitment, the parties being already in charge on apprehending warrants.

This closed the plaintiff's case.

A desultory conversation now took place between the Judge and Counsel as to the form in which the action should have been brought, when His Honor said he was of opinion the action was right in form.

The Attorney-General then addressed the Jury for three hours and three quarters.  He said that like skilful generals the plaintiff's counsel had not produced nor called for the depositions taken before Captain Faunce at Brisbane Water, but had thrown on the defendant the onus of proving that he had jurisdiction.  By Act of Parliament the Magistrate was bound to take down all the evidence in writing, and on the depositions taken at Brisbane Water being proved, it would be proof that the defendant had jurisdiction, and on the facts on the face of the depositions he relied for his justification.  Mr. Kerr had ended his speech by alluding to Captain Faunce being able to pay heavy damages, but he would ask whether even on the plaintiff's case alone there appeared anything for which the defendant deserved to be made a beggar.  It certainly was a novel mode of exciting a jury to tell them to make an officer in the army a beggar.  The law in no case called for vindictive damages, although the liberty of the subject was a question which always excited the passions even by the bare mention of its having been infringed; but the liberty of the subject was founded on the laws of the country, and the laws not enforced, the liberty of the subject was all nonsense - there could be no liberty of the subject if there were no respect for the law.  The magistrates were bound by the law and by their oaths to act according to their judgment and discretion, without fear, favor, or distinction; but although the law made no distinction between gentlemen and other persons, the defendant had in the present case made as much distinction as he possibly could: he allowed them to sleep in the Police-Office for two or three nights, as being more comfortable, and had allowed them to walk about every day after they were committed.  Why did Captain F. make this distinction? the law allowed no distinction, and he would put it to the jury whether anything but a liberal and generous feeling could have actuated Captain F., and whether it was to be supposed that he could have been actuated by such motives as were imputed to him by the plaintiff.  Mr. Donnison was intimately connected with thee present case, as would be seen by the depositions.  He had been living in that remote part of the country for some years - it might be called remote for there were no roads, it was perfectly isolated and separated from other parts of the colony, and there were very few people.  From Mr. Donnison the jury had heard that an unpleasant altercation had taken place between him and Mr. Warner - they had differed on the bench in a case where Mr. Moore was concerned, and the case remained in abeyance until Mr. Warner resigned his appointment of Police Magistrate and Captain Faunce was appointed; the circumstances of this case His Honor thought could not be gone into, and therefore he would leave that portion of the case.  On the 14th November, when the case of perjury was preferred by Mr. R. Cape against the plaintiff, Captain Faunce after examining Cape did not proceed further with the case.  Meadows was present to give evidence in the perjury case, and when it was concluded, Cape and Meadows came in as had been described by Donnison, and accused Bean and Donnison of stealing the cow.  This was an old case, for on referring to the  records of the Bench, Captain Faunce found that in April, 1834, a summons had been issued by Mr. Warner against Mr. Bean for detaining this cow; it was no matter whether the plaintiff was guilty or not; the only question was whether there had been sufficient before the Magistrate to justify him in acting as he had done.  The depositions were all in the hand-writing of Captain Faunce and by his direction all the prisoners got copies of them; one circumstance that had been laid great stress on by Mr. Kerr, as shewing the malice of Captain Faunce, was that he had kept back documents which had been handed to him for the purpose of being transmitted to the Crown Office, it would doubtless require many strong instances to convince the Jury that the defendant had acted from malicious motives towards persons whom he knew nothing about; he was a perfect stranger to the district, had no property there, and knew no more of Cape and Meadows than he did of the plaintiff; and it would therefore require a very strong fact to convince him that there could have been malice; and this strong fact on which the plaintiff depended was the suppression of the documents; the only evidence which they had to prove this fact was that Faunce had handed Bean the documents after the trial, and that Watson thought the writing on the envelope was in the handwriting of the defendant.  It was impossible to suppose that Captain Faunce had detained the documents, they must have been in the Crown Office, and after the trial Captain Faunce got them and returned them to Bean.  There was a great many documents transmitted to the Crown Office, and when it was determined that there should be no further prosecution they were returned to the different parties they belonged to.  What had Captain Faunce to do with their not being produced on the trial? - the moment they were placed in the Crown Office they were out of his controul, and he could not instruct the Crown Counsel as to what evidence and what documents should be produced, and it was no argument against Captain F. that they were not produced at the trial.  Donnison had said that Meadows was a man of bad character, but up to the year 1834, when the summons was issued against Bean, Bean had always a high opinion of Meadows, and in 1834 he wrote a letter to the Colonial Secretary recommending him for a grant of land, and speaking of him in the highest terms.  Notwithstanding the defendant not being obliged to hear witnesses for the defence, he examined a witness for Mr. Bean, and when the Jury were called on to say that the defendant had acted with malice, they must look at all his actings and when they saw that he went out of his way to hear witnesses for the defence, what malice was shewn?  Would a man who was intent on injuring others go out of his way to serve him?  (The learned gentleman went through the evidence taken at Brisbane Water, and endeavoured to show that there was quite sufficient on the face of the depositions to justify him in acting as he had done.)  It was the duty of Captain Faunce to hear a charge against the highest man in the realm if it was sworn to by a credible witness, he must take it, and if the person swore falsely he would be liable to be convicted of perjury and transported.  The defendant had nothing to do with the feelings of R. Cape towards Bean; it was evident that they had bad feelings towards each other, for Bean had accused Cape of cattle-stealing and Cape had accused Bean of perjury, but that was not to prevent Captain Faunce from endeavouring to elicit the truth.  However obnoxious Cape might be to Mr. Bean was nothing to the Magistrate; Cape was a free man, a man of very respectable connexions and held the situation as Superintendent of Mr. Manning's establishment formerly held by Mr. Bean.  He was of the same rank as Mr. Bean; he was not a Magistrate, but he was as much entitled to credit as any man in the land, and the defendant could not dismiss a charge made by him.  There was a stress laid on Bean being committed for stealing and Donnison for receiving, but there was nothing to contradict that, in the face of the depositions.  There was no, account of the sale, no price, no time mentioned, no person named as being present.  It was not to be supposed that the defendant knew the legal distinctions, and had been committed, but if after the cow was killed Bean came forward to save his friend and stated that he had sold the cow to Bean it would support the information as laid.  The charge was made on the 14th November, and after witnesses had been examined the matter was allowed to rest over until January, the prisoners being allowed to go at large on their parolle [sic]; the document that satisfied Mr. Manning was in his possession, and the defendant never saw it; why did not Bean come to Sydney and urge Manning to look for the documents? because things now were brought forward to show that the plaintiff was not guilty, was that any reason why the defendant acted maliciously in committing him to take his trial? the plaintiff has only himself to blame, and if Captain Faunce had refused to proceed on the oath of Meadows, he would have acted illegally; Mr. Donnison had said that Captain Faunce was shy, and it was a very natural question why, at Brisbane Water, he should wish to keep aloof from Mr. Donnison, who was the only magistrate in the district, and had an amiable woman for a wife, and an accomplished family; in an isolated place like that, the loss of their society was as great a privation to Captain Faunce as it could be to Donnison; but he must have heard that there had been disputes between Warner and Donnison; it was on the Police Records; a case had actually been postponed on account of the disputes, and one of his earliest duties was to investigate this case, and in which a protest had been entered against Mr. Donnison acting as a magistrate; Captain Faunce deprived himself of all society until the case was ended, and nothing but a sense of duty compelled him to investigate it; Mr. Warner resigned his situation, and Captain Faunce was appointed; what for? he to do nothing? was it not his duty to trace out crime sworn to against any individual?  Mr. Donnison had suggested that there was a bad feeling against him in the district, because h had put down sly grog-selling and cattle-stealing; this was very true, and any person who did his duty as a magistrate must get the bad name of such people, but he could not allow Mr. Donnison to take credit to himself for being a man of this kind, when, during the whole of the time he had been a magistrate, he had only committed one man for cattle-stealing, Flannigan, at the prosecution of Moore with whom he was connected, while had had not even convicted one grog-seller, but had contented himself with telling the constables to look out for grog-sellers; how then could he say that he had acquired the bad feeling of this class of people, and that the whole string of evidence in this case arose from a conspiracy from this source, and that it was so clear that the defendant must have seen it?  Drew, the chief constable was, as the jury must have seen, a very stupid man, and when the plainest question was put to him he misconceived it; and one great cause of his embarrassment was, that he had put the irons on on [sic] his own responsibility; and without orders from Captain Faunce - because when the chief constable and constable Carpenter told him that they were afraid of a rescue from the insecurity, coupled with the remark which had been made by Donnison about the men rising, Captain Faunce merely said that they must be put in irons, but he never intended it as an order - he only intended that if, upon further enquiry, the representation should be found to be true, he would give orders to have the irons put on; he was quite astonished when he heard they were put in irons, and he should have punished Drew for putting the irons on without an order; when Mr. Plaistowe called on Captain Faunce, he knew he was an Attorney and considered he was a regular trap, and did not wish to give up the Chief Constable, though he certainly should have repudiated that for which he never gave an order.  Drew was afraid it would be fixed on himself, and therefore wanted to place it on Captain F.  Drew could not have taken the words as an order, or why did he not execute it immediately?  Why did he leave it for three or four hours without executing the order?  Seeing that Captain Faunce did not commit to the first instance, but allowed the plaintiff to go home on parolle [sic], and afterwards gave leave to Mr. Donnison to go home, although the constable would have ordered the irons to be put on?  There was a report in the district that the cutter Laura belonged to Mr. Donnison, and Mr. B. believed it, and when Mr. D. spoke of going to Sydney in that vessel it gave a color to the constable's excitement that he intended to escape, and what he said was equivalent to saying, that if it was true, they ought to be put in irons.  With regard to the illegality of putting them in irons, when the law was laid down that irons were only to be put on where an escape was thought likely; a Botany Bay lock-up was never contemplated, especially the Brisbane Water lock-up, which was so rotten that a prisoner had nothing to do but to take up a boat and make his escape.  The law would never punish a gaoler for suffering a prisoner to escape if he did not give him power to keep him; the Jury were probably aware how often prisoners escaped from the Goulburn lock-up, and shewed the necessity of gaolers being more cautious.  The Jury must judge what was rational from the whole circumstances of the case, if they believed the irons were put on in consequence of what the defendant said, they must consider whether he had any color or ground for making the observation.  Speaking in confidence to the constable, on hearing that it was likely the men would rise, and that the circumstances of Donnison were embarrassed, and he meant to escape from the Colony - believing these statements and thinking that there was a strong case of felony against them, was it not likely he should make the remark he did?  In Hale's Pleas of the Crown, it was laid down that it was lawful to hamper prisoners with irons to prevent their escape.  It appeared on the evidence that these gentlemen did not meditate escape, but still the expression of Donnison was a very awkward one, and if Mr. Donnison intended it as a joke, it was a bad one, and was a subject that he should not have joked upon.  It was insinuated that there was no warrant for the detention of the prisoners, but it would be shewn that the warrant was made out in the usual form that warrants are made out for persons who are going to Sydney, and that it was made out the instant the case was closed; that it was signed by Faunce; that the prisoners were brought to Sydney on that warrant; and that it was in use in every part of the Colony.  What feelings, he would ask, was it possible the defendant could have had against the plaintiff? he was a stranger to him, and if he had any feelings it must have been to uphold the character of the plaintiff, who was a gentleman as well as himself; but if his honest judgment told him he had been guilty of felony, he could shew no respect to persons; he felt sorry, but he was obliged to commit.  It would require strong facts to upset the high character Captain Faunce had held for many years as an officer in the Army.  Was there anything in the present case but an error of judgment to complain of? was it to be supposed that Captain Faunce was infallible? and if the laws did not exucsee [sic] Magistrates for errors, who would hold the commission?  If a Magistrate acts through error in Judgment the law holds him harmless.  Captain Faunce was not the only Magistrate who thought it was a case of committal; Mr. Warner not only thought it a case for committal, but a case in which hail should not be admitted.  Mr. Kerr had called on the Jury to make the defendant a beggar, but if so, what were Messrs. Moore and Donnison to do? for on looking at the case list, he saw there were Bean v. Faunce, Moore v. Faunce, and Donnison v. Faunce; so that if they gave the price of Captain Faunce's commission to Mr. Bean, there would be nothing left for the others but his military coat, or old sword.  The learned gentleman concluded, by observing that he fully agreed with the opinion of Lord Mansfield, as quoted by Mr. Kerr, that where the heart was right there could be no damages.

The following witnesses were then called for the defendant:-

Mr. T. H. Scott, Clerk of the Bench at Brisbane Water - I recollect Messrs. Donnison, Moore, and Bean being charged with cattle-stealing.  (The witness proved the signatures of the deponents, and Captain Faunce to the proceedings at the Police Office on the 14th and 15th November, and 4th of January.)  I gave copies of all the depositions that were required by Messrs. Donnison, Moore, and Bean; there were two depositions that were not furnished; I cannot immediately call to recollection which depositions they were; I had a great pressure of business which prevented my furnishing them; Captain Faunce desired me to furnish them with copies; I was asked for copies late on a Saturday night, and I copied them on Sunday, January 8th; all these depositions and statements went to the Attorney-General; there were several parcels of papers forwarded to the Attorney-General; the whole of the depositions relative to the case of Bean, Moore, and Donnison were forwarded to Sydney on the 18th January; the November depositions were sent to Sydney a day or two after they were taken; the November depositions were returned to Captain Faunce; I recollect the examination of Mr. Bean closing on the 4th January; Faunce remarked that he must commit them, and he hoped they would admit they had justice extended to them: on the morning of the same day, Mr. Bean said that Captain Faunce was prejudiced; Mr. Bean in answer to Captain Faunce's remark at the end of the day, said that had he been in the same position he must have acted as Captain Faunce had done; it was not said ironically; Mr. Donnison admitted that justice had been done; Captain Faunce appeared to be pleased, and said he was glad that they at last acknowledged that justice had been done.

Mr. John Weston, Governor of Sydney Gaol. - I produce the warrant under which I received Mr. Bean; he came into my custody on the evening of the 26th January.

Mr. Scott recalled - This is the warrant I alluded to; it was signed and sealed by Captain Faunce on the 4th January; I gave this warrant to the  Chief Constable; I recollect a very rainy day on which they were to be sent to Sydney, I received a letter interdicting their being sent on account of the rain.

Cross-examined. - This warrant was signed on the 4th January; I gave this warrant to the Chief Constable; I recollect a very rainy day on which they were to be sent to Sydney, I received a letter interdicting their being sent on account of the rain.

Cross-examined. - This warrant was signed on the 4th January; I gave a copy of this warrant to Mr. Plaistowe; I think it was to Mr. Plaistowe; I will not swear I copied this particular one, but I think I did; to the best of my recollection a warrant is always made out when a man is detained at the lock-up; there was no warrant for the detention of Mr. Bean that I recollect; if they were detained only one day, a warrant was made out; there was no such warrant made out in this case; I gave evidence respecting Mr. Donnison; it was extracted from me piecemeal; it was in a case of cattle-stealing; there is a charge of magisterial delinquency which was extracted from me by Mr. Donnison.

Re-examined. - If there is any nonsense in my deposition, it was not put there by desire of Captain Faunce, but was in answer to a question from Mr. Donnison; I cannot recollect a warrant being made out for their detention; I only recollect two warrants, one for the apprehension, and one for the committal; Mr. Plaistowe offered to lay a wager about the result of the criminal trial.

Jonathan Warner, Esq., J. P. - I was Police Magistrate at Brisbane Water before Captain Faunce; in April, 1834, I was visiting Magistrate, a man named Meadows came before me with a complaint about a cow; this is the Record book of the Bench; ``Brisbane Water, April 9, - George Meadows deposeth, that Mr. Bean has a cow, his property, and will not give her up to him; she is branded with Mr. Manning's brand is blind of an eye, and has her ear torn" - this is an extract; I issued a summons against Mr. Bean; I visited there every fortnight; Meadows attended more than once; Mr. Bean did not for some time afterwards; in January last, I was at Brisbane Water; I saw the depositions that had been taken about the cow; there are the depositions; Captain Faunce consulted me, and I said I thought they were not entitled to bail.

Cross-examined - I made no deposition before Captain Faunce; those depositions were taken before I got there; I cannot say whether the extract from the Record book was attached to the depositions; I issued the summons against Bean for detaining the cow; it was not a charge of felonious stealing; I wished to know how it came into Mr. Bean's possession, and who the cow belonged to; I wished to ascertain to whom the property belonged; I considered I had jurisdiction, and I consider so now; if he would not have appeared I would have issued a warrant, (His Honor remarked that he was quite surprised to find so much ignorance in a Magistrate who had been nine years on the Bench.)  I think Captain Faunce knew there had been a quarrel between me and Mr. Donnison; I do not think Mr. Bean or Mr. Donnison was brought before me as a Magistrate; the prisoners were not present when I saw the depositions, and I was not on the Bench; I heard nothing of this case from April, 1834, to January 1837; Mr. Bean was in the district when Meadows made his complaint.

Re-examined - my object in granting the summons was to settle the complaint and satisfy both parties.

Mr. Atkins - I am clerk to the Attorney-General; I recollect the trial of Messrs. Bean and Donnison; six or seven days after that trial, I gave some papers to Captain Faunce; there were some letters and other papers which he said he wished to return to Mr. Cape and other parties.

Mr. Fisher, Crown Solicitor - I recollect the trial of Messrs. Bean and Donnison for cattle stealing; I had the whole of the papers in Court that had been sent to the Attorney-General; amongst them were these documents; I expected to be called on to produce them; (these were the two papers alluded to as having been suppressed) they were all returned to the Attorney-General's office, and I have not seen them since.

Cross-examined - I recollect Captain Faunce being cross-examined; he was asked if there was a gill of sale produced before him, and he said no; there was no question put concerning these papers; he made no statement respecting them.

Re-examined - Captain Faunce had no controul over the papers after they reached the Crown Office.

James Carpenter - I was a constable at Brisbane Water in January last; I got a warrant to apprehend Mr. Donnison, and apprehended him in his own garden, I had a deal of trouble about it; I had heard about his being a great man to get away from Sheriff's bailiffs; I asked the cook for his master; the overseer came to me and said his master was not at home; pretending to be a sawyer, he took me down the garden, and I saw his master, when I pulled out a pistol and the warrant, and bid him good morning; he asked me what I wanted, and I said I had a warrant for his body, and I apprehended him; afterwards, when we were in the kitchen, the overseer said that if he had had a piece when I apprehended the master he would ---; I asked him what, but he did not answer; I told Captain Faunce it would be a nice thing for me to be placed at the bar on his charge in case he escaped from me; I told Captain Faunce what the overseer had said.

Cross-examined - I had on a coat and a straw hat; I pretended to the overseer that I was a sawyer and had come to look out for work; I did not put the pistol to Mr. Donnison's breast; the overseer told me he took me to be a man that owed his master some spite and had come to shoot him; Mr. Donnison told Captain Faunce that I had used violence, but there was not much violence in letting him ride on horseback to the lock-up; it was some time afterwards that I told Captain Faunce about the overseer.

Re-examined - Mr. Donnison wanted to look at the warrant.

Chief Constable Drew recalled - This copy of the warrant of commitment is my hand writing; I copied this from the original which was in the Police Office; I got the original on the 4th January.

Cross-examined - I made this copy in my own place; the original was in custody of Scott, the Clerk of the Court; it came into my possession first on the 14th; Mr. Scott asked me to copy a few for him as there were so many warrants to make out.

Re-examined - On the 14th I went to the  Police Office to copy the warrants; if I said the warrant was in my possession on the 4th it was a mistake; I delivered the warrant when I got to Sydney with the prisoners; it was given to me about two days before we left.

Mr. W. T. Cape - I recollect going to Brisbane Water in January last; I had occasion to go before the Police on a case where my servants had robbed the dairy: I shewed Captain Faunce a letter from my brother on the subject, at the end of which there was a paragraph respecting the intended escape.  His Honor said this was not evidence, and Mr. Cape left the box.

This being the close of the defendant's case, the whole of the proceedings before the Bench at Brisbane Water, and the different documents put in to the course of the case, were read.

The Attorney-General requested the Judge to make a note of his objection as to the form of action, which should have been on the case, instead of in trespass, in order, that if necessary, he might afterwards move the Court on it.  His Honor made the note.

Mr. Kerr then addressed the Jury in reply.  The identity of the cow he contended was nothing to do with the case; the question was, was there any evidence of a felony having been committed?  Did all the evidence on the face of the depositions carry the case any further than the deposition of Meadows, made in 1834, that Bean detained the cow?  All the evidence clearly shewed that Bean held the cow for Manning; and was it likely Bean would steal a cow for another person?  If there was no other proof of malice than the irons being put on, it was sufficient; why were they put in irons?  Why were the grounds of defence shifted?  First, Drew did it on his own responsibility; and when the evidence became too strong to admit of that position, then it was contended that it was to prevent their escape, and that there was fear of a rescue, but it was evident there was no such fear.  The learned gentleman then went through the whole evidence, pointing out the facts which he considered strengthened his client's case, and called on the Jury to give the full amount of the damages laid in the declaration.

His Honor said that magistrates should always act on their own discretion; and he thought that a great many of the circumstances of the present case arose from the defendant not having done so.  It appeared that he had consulted the Attorney-General as to the propriety of committing the plaintiff; no one could have a higher opinion of the learned gentleman who now filled that situation than he had, but he did not think he was an authority that a magistrate should consult whether he should commit or not.  As public prosecutor, he could, in his discretion, determine whether or not a prisoner should be put on his trial.  It was often said that the Attorney-General was the Grand Jury of the Colony, but he certainly denied that he was so; a Grand Jury always had the witnesses before them and examined them viva voce, while the Attorney-General had nothing to depend upon but the written depositions; but if the Attorney-General were the Grand Jury, how irregular it would be for a magistrate to send to a Grand Jury to know whether or not he should commit; so jealous was the law on this point, that a committing magistrate was not allowed to sit on a Grand Jury.  It was certainly pressed on the defendant by the parties themselves, who requested him either to acquit them or send the case to the Attorney-General, and the defendant erroneously did so, although it was his duty on the 14th November then and there to have decided the cases, instead of irregularly sending them to the Attorney-General for his opinion.  The defendant had been certainly placed in a novel and painful position; there was evidently a great ferment in the district, and it became him to be shy and cautious; it was his duty to watch the cases with great jealousy.  Another feature in the case, was the readiness of the defendant to attend to the suggestions of Drew and Gorman; there was not the slightest proof of the reality or the intention to escape.  He would at once say that the Jury were not to sit in judgment on the committal of the magistrate; if they were to try whether the plaintiff had been guilty or not of the felony, they had the verdict of the Jury, which was sufficient; but they had the evidence of Mr. Manning and others, which established the character of the plaintiff; and he thought they were fully justified in saying they were innocent, and if they connned [sic] themselves to the  depositions they might arrive at the same conclusion.  The oath of Meadows as to the beast that was killed was not met positively; there were only doubts as to the identity; and it was suggested that there were two beasts alike.  Although there might a be a wrongful taking, there was not a felony; the magistrate might have thought it sufficient if taken wrongfully, but that was not sufficient to constitute felony; there must be a furtive taking.  The warrant of commitment was made out on the section of the Act of Parliament 7 Geo. IV, cap 64, which says, ``that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more Justice or Justices of the Peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence, as if not explained, shall in the opinion of the Justice or Justices raise a strong presumption of the guilt of the person charged, such person shall be committed to prison."  That being the law, the Jury were not entitled to go over the grounds on which the plaintiff was committed, the law vests discretion.  If there was no malice there could be no damages; the opinion formed by the magistrate might be erroneous, but the law vested in him the right of forming the first opinion.  The same clause vests in magistrates the power of giving bail when two magistrates are present, but in this case there was no second magistrate; Mr. Warner was consulted, but only as any other gentleman might have been, under these circumstances it appeared that the warrant of committal was legal.  The second part of the case, respecting the putting in irons, was not so clear, and he had great doubts whether an action for excessive jurisdiction should not have been on the case instead of in trespass, but he would leave it to the jury.  The second clause stated that the defendant assaulted the plaintiff, and, without reasonable or probable cause, put him in irons; now if this was unnecessary and without cause, it was as much a substantive injury as if the defendant had gone into the gaol and knocked the plaintiff down.  It was lawful for a magistrate to order a prisoner to be put in irons, if there was a reason to suspect that he intended to escape, and that was the point for the Jury to determine.  It was attempted to be disputed that it was the act of the defendant, and it was for the jury to say whether they considered it was the act of Drew on his own responsibility, or whether he acted under the orders of the defendant.  No warrant would be necessary for ironing the plaintiff if it was considered necessary.  If the magistrate had acted illegally the plaintiff was entitled to damages; but if the defendant had acted maliciously and oppressively, the jury should not weight the damages too nicely, but shew by the tone of their verdict how they were determined to punish those who made use of their authority for the oppression and annoyance of their fellow subjects.  With regard to the expression made use of to Plaistowe, it was for the jury to say whether it was said in the warmth of argument, or whether it was caused by the malice of the defendant.  In considering the question of malice, the jury must see whether the defendant's other acts evinced malice; it was at the request of the plaintiff that the proceedings were sent to the Attorney-General, and the defendant might have remanded him for further examination, but, instead of that, he allowed him to go home on  his parolle [sic], from November to January; afterwards, the prisoners (Bean, Moore, and Donnison) were allowed to sleep two nights in the Police-office, and after committal, were allowed to walk about - did these look like malicious acts?  They were also furnished with copies of the warrants and of the depositions - these were irregular acts, but they were irregularities in favor of the plaintiff, and it would be for the jury to decide whether they were the acts of a malicious man.  The third count charged the defendant with unlawfully imprisoning the plaintiff on board the Betsy; it would have been better perhaps to have directed a warrant to the  constable to take to Sydney, but the warrant of commitment was quite sufficient, and there was no more necessity for a warrant for sending him to Sydney, than there would be for the constable who takes the prisoners from the Police-office at Sydney to the Gaol, and therefore on that count the jury must return a verdict for the defendant.  If the jury considered there was want of probable case or malice in the committal, they might review the decision of the magistrate; but if they considered it was only an error in judgment, they could not.  On the first count they must consider whether the plaintiff acted without probable cause or from malice; on the second, whether the defendant ordered the irons on from malice and without probable cause, or whether there was a necessity for his so doing; and on the third, they must find a verdict for the defendant.

The Jury retired about three quarters of an hour, and returned a verdict for the plaintiff on the second count - damages £300.

His Honor certified that this was a case for a special jury and three council.

Counsel for the plaintiff, Messrs. Kerr, Foster, and a'Beckett; for the defendant, the Attorney-General, and Messrs. Therry and Windeyer.  [The case lasted the whole of Tuesday, and until eleven o'clock on Wednesday night.]

Dowling A.C.J., and Burton and Kinchela JJ, 14 July 1837

Source: Sydney Herald, 17 July 1837

Friday, July 14. - In Banco.  Before the three Judges.

Bean v. Faunce. - This was an action for false imprisonment, tried before Mr. Justice Burton, and a Special Jury, when a verdict was returned for the plaintiff, damages £300.  A new trial was moved for by the Attorney-General and Mr. Windeyer, on the ground that the notice of action was not served on the defendant personally, or at his usual place of residence, according to the Act of Parliament.  There were several other ground stated in the notice, but the learned counsel confined themselves to this ground.  After the plaintiff's counsel had been heard, their Honors said they would take time to consider their decision.

Source: Sydney Herald, 17 July 1837

Bean v. Faunce. - The Chief Justice stated that the Court overruled the objection as to the service of the notice, being of opinion that the service at Lieutenant Faunce's quarters was, under the particular circumstances of the case, within the spirit of the Act of Parliament.  The Attorney-General then went on to argue, that a new trial must be granted on the following grounds - Firstly, that no action was maintainable against the defendant under the circumstances disclosed at the trial; secondly, that if the action was maintainable it should have been in case and not in trespass; thirdly, that the Judge admitted evidence of malice and rejected evidence to disprove it; fourthly, that the question of malice ought not to have been entertained at all; fifthly, that the Judge directed the Jury to find whether the defendant had without probable cause maliciously imprisoned the plaintiff; sixthly, that the damages were excessive; and seventhly, that the verdict was against evidence.

After the Attorney-General and Mr.Windeyer had been heard at great length on these points, the Chief Justice said they would not call on the plaintiff's counsel to reply, but would consider the point until Monday.  If, in the meantime, any doubt should arise, they would hear the plaintiff's counsel, but they were then of opinion that all the objections must be overruled.

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

Monday, July 17, 1837. - In Banco. - Before the Acting Chief Justice and Mr. Justice Burton.

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.

THE BRISBANE WATER CASES.

A few days only have transpired since the celebrated cases of Beau v. Faunce, and Moore v. Faunce terminated, by the defendant being cast in damages to the amount of £300 for maliciously putting the former gentleman in irons - and £250 for ignorantly treating the latter with the like indignity, and the public mind highly excited as it was for the moment, has become comparatively calm; Captain Faunce resumes his magisterial duties at at [sic] Brisbane Water, to treat, we may fairly assume, his Majesty's subjects, who prove obnoxious to his mighty will and pleasure, with similar ignorance and malice - and the affair, it appears is altogether to be forgotten till the ensuing sittings of the Supreme Court, when this would-be military despot is once more to figure before the public in the same amiable and interesting scene.  Had such instances of tyranny as have been but too truly depicted in these cases, occurred in  England - the whole press of the ``United Kingdom" would have rung the changes into Captain Faunce's ears, till public indignation had reached the height of something like open rebellion against that Government, who refused to remove such a Magistrate from the Commission of the Peace, -- but being at the antipodes in geographical position, it would seem we are equally so as regards all sense of moral principle.  This unfortunate country is low indeed in the scale of civilized life, when we find that the stream of injustice is permitted to flow on unchecked, utterly heedless of the ravages which it may inflict on private character.  So goes the world - at all events that part of it known as New South Wales, under the present enlightened administration!  We have so often alluded to Captain Faunce's freaks at Brisbane Water, that a repetition of all the circumstances attending the commitment and ironing of Messrs. Bean and Moore would be superfluous.  A brief outline of the proceedings will now therefore suffice.  In the first place we have it from the judgment seat itself - from the lips of His Honor Mr. Justice Dowling that, had Mr. Bean proceeded against Captain Faunce for committing him for trial on a charge of cattle stealing, instead of for putting him in fetters, he Mr. Dowling, had the case been tried before him, would have certified that there was no cause for committal! which would have entitled the plaintiff to much higher damages.  Here then is looking to the first act of injustice inflicted on these deeply injured men.  They are sent to trial without a shadow of a charge affecting their reputation in any way, and are loaded with chains; and when Captain Faunce is remonstrated with for his proceeding to a rigour unknown to the law - when he is informed that it is illegal to put irons on reputable persons without cause, he maliciously exclaims, ``If I cannot send them to Sydney in irons they shall be forwarded in hand-cuffs"!!!  Where can we find language to describe the feelings which such sentiments so expressed give rise to? - Where find words sufficiently condemnatory against the Government that upholds a Magistrate in conduct so reprehensible?  If a similar charge, as infamous as it proved unfounded, had been brought against Captain Faunce and by the same disreputable characters too, and Mr. Warner, J.P. in his state of ``blessed ignorance" had treated him as he thought fit to treat Messrs. Bean and Moore, would he, we enquire, consider £250 or £300 a sufficient compensation?  What could he have thought of Mr. Warner's moving for a new trial on the ground of excessive damages? - excessive damages, indeed!  Had Captain Faunce been a man of property, the Jury would have taught him a lesson not easily to be forgotten; it was the want of proof of his being wealthy which saved his purse.  To this alone is he indebted for the lenity shown by the Jury in their verdict.

The peculiar features of these cases show two startling facts.  One is, that in this Colony under the present administration, no man of character is safe.  Let an individual but make himself obnoxious to the powers that be, or to their delegates, he becomes a ``marked man;" his ruin, either in a pecuniary point of view, or what is of still more importance, his reputation, is attempted to be undermined, he is dragged to the magisterial bar - thence to he gaol - there loaded with fetters - and lastly exhibited in the felous dock.  Look at Mr. Bingle's trial.  Look also at the present.  The second startling fact is, that raw recruits - perfectly innocent of the duties requisite in a Magistrate, are appointed to the Commission of the Peace, over the heads of well-qualified men.   This is a system we have long complained of; but it will never be remedied during the reign of Sir Richard Bourke.  That reign, fortunately for the colony, is drawing to a close, we my then soon hope for better days and brighter prospects.  God send them speedily say we.