Benjamin Warby was indicted for receiving cattle, knowing them to have been stolen, at Yass, on the 16th October last.  The information charged the offence variously, as having been stolen by William Warby, and also by some person to the Attorney General unknown.

The first witness in point of time was an approver, named William Bridges, a stock-keeper, who had the charge of cattle, belonging severally to Messrs. George Hill, William Roberts, and Andrew Badgery; and about three years ago, after a short absence from his station, on his return, he missed several of the cattle, which he afterwards saw in William Warby's herd at Yass; and having mentioned the circumstance to William Warby, that person told him not to say anything abut it, and he would remunerate him in money, tea, sugar, and tobacco, which he afterwards did.  Witness afterwards gave information to the Bench at Yass; and on his information William Warby was taken up, committed for trial by the Bench, and eventually convicted before the Supreme Court and transported.

The next witness in succession was Mr. Cornelius O'Brien, who, in consequence of information received from various approvers during the months of August and September, was instrumental in the prosecution of William Warby for cattle stealing.  During the examination of William Warby at the Police Office, at Yass, witness received information that Benjamin Warby was collecting his brother's cattle together for the purpose of removing them; and accordingly, attended to Warby's station, and there saw Benjamin Warby, who was busy collecting the cattle; and who, on witness appearing, said, ``I know what you are come for, and if there are any cattle that can be pointed out by the approvers you can take them away;" at this time there were about 1,100 cattle collected in the yard, and fourteen or sixteen head were picked out by the approvers and driven away; Benjamin Warby stated that he was going to send the cattle away, some to Sydney and some to Manaroo; but witness cautioned him against touching them, as they were seized by the Crown; upon which, the prisoner said that he had taken legal advice on the subject, in consequence of which he had purchased his brother's cattle, wheat, farming utensils, and in fact all connected with the establishment for £2,500, and had agreed to pay it in instalments, for which he had given bills payable from three months to three years; and he was determined to maintain his claim to the cattle, which he expected were about 1,500 head; Warby stated that he had complained to his brother of some of the cattle being claimed by witness and other persons, and he added that his brother had told him that he should be held harmless for all such as were claimed by witness and other persons, and he added that his brother had told him that he should be held harmless for all such as were claimed, and a deduction made to that amount from the purchase-money.  Witness told the prisoner at the time that he considered he was acting very wrong in attempting to establish a contract between him and his brother; that he must be aware neither his friends nor the public would believe that a sale was made for any purpose but that of fraud; prisoner, however, stated the sale to be good, and continued in his determination of keeping the cattle, giving up any that might be claimed and identified; witness then told him that he must not remove any of the cattle, as he (witness) expected another approver there in a day or two who would be able to identify more of the cattle as belonging to other persons; witness then went away, but did not return with the approver, nor take further steps until the month of January, when, hearing that the prisoner had removed the cattle, some up the country, and others to Sydney for sale; witness came to Sydney accompanied by the approvers Glover and Bridges, and gave information of some of the stolen cattle being at Moore's farm, on the Liverpool Road, which caused an enquiry, and Benjamin Warby who was then in Sydney, was taken into custody.

Mr. George Hill stated, that he saw some cattle which Benjamin Warby offered for sale in a paddock near Grose farm, but did not think at the time that any of them belonged to him, until informed so by Glover and Bridges, the stock-keepers, who went out and identified four as being severally the property of witness, and witness and his partners; the cattle thus identified were differently branded; witness saw the prisoner, and told him that some of the cattle belonged to witness and Mr. William Roberts; but the prisoner refused at first to give them up, stating that he had purchased the cattle from his brother, and had a right to them; upon which witness applied at the Police Office and obtained a warrant, when the prisoner gave the cattle up; when the prisoner heard the approvers sworn at the Police Office, he said that he would give up any cattle that could be pointed out; witness knew the prisoner for many years, and always considered him an honest, upright man; and on a full explanation of the circumstances, witness thought, had he been placed in a like situation, he would have acted the same as the prisoner had done, and not think it dishonest.

Robert Glover, an approver, and who admitted that he first gave the information in consequence of being himself charged with cattle-stealing, spoke as to the identity of a cow which he had missed when a calf from Mr. Hill's heard three years ago, and which he now identified having Wm. Warby's band on it; the reason he did not give information before, was for fear of getting a bad name; he said nothing about it till charged with cattle-stealing himself.

At the close of the prosecution, Mr. Foster contended that there was no case to go to the Jury: that the whole transaction was a contract, which, however it might be the subject of an inquiry as to the claim of the Crown, could not in any possible way be construed into a guilty receiving.  It might even amount to a fraudulent withholding; but after the prisoner's open avowal of his intention at the very outset of the business, it could not be criminal.

Mr. Plunket at considerable length remarked on the prevalence of cattle stealing, which required a check; and contended that the inquest which had decided that the sale was a fraudulent one, had in fact given their opinion of the nature of the act.  After being warned by the Magistrates, and knowing as the prisoner must have done, that the cattle were stolen, there was clear grounds for the charge, and the evidence in his opinion was sufficient to go to the Jury.

Mr. Foster replied at some length.

His Honor said that he should certainly let the case go to the Jury, which he felt bound to do on two points; first, the prisoner knowing that his brother was accused and under examination for cattle stealing, made an agreement with him to buy the cattle that were in dispute; and secondly, at the very time that his brother was under examination on a charge of cattle stealing, the prisoner was found collecting and driving away the cattle, as it would seem to defeat the necessary enquiry.  The prisoner was called on for his defence.

Mr. Francis Stephen, attorney, sworn, deposed; that in October last, the prisoner and his brother William called at witness's office, requiring professional advice as to whether a warrant being then out against William Warby, a bill of Sale could be made, and would be considered valid between the brothers; and witness gave it as his opinion, that if a bonâ fide Bill of Sale was made, without reservation, at an equitable rate, the sale would be valid; on which, a Bill of Sale was drawn in witness' office, dated October 16, 1835, conveying the whole of William Warby's property, consisting of wheat, fencing, farming utensils, and cattle, to Benjamin Warby, for the sum of £2,500, which was paid in Bills, made payable in nearly equal sums from 3 months to 3 years; witness considered the sale as a bonâ fide one, and had no doubt from circumstances that he was aware of, that the first bill was paid when it became due; there was no clause in the agreement which provided that a deduction should be made from the purchase-money for any stolen cattle that the prisoner might be done out of; witness had always had a high opinion of the prisoner by whom he had frequently been professionally employed, but did not know much of William Warby.

Several other witnesses were called for the defence whose testimony was unimportant, and an affidavit (sworn before a commissioner of the Court) of the Rev. Thomas Reddall, was put in by the consent of the Attorney-General, which gave the prisoner a very high character.  William Howe, Esq. Of Gleenlee, Mr. Robert Jenkins, Mr. Thomas Rose, and the Rev. J. J. Therry, were severally called and spoke very highly of the prisoner's general character since his boyhood, and Mr. Foster closed his case.

In consequence of Mr. Francis Stephen in his examination, having stated that the evidence including a statement made by Warby to the Magistrates had not been correctly taken down.  Colonel Wilson was put into the box to explain what appeared vague.

His Honor summoned up at great length, and the Jury retired for about a quarter of an hour, and returned a verdict of Not Guilty.

The Attorney-General stated that he would take bail for the prisoner's appearance on a second charge, when called on; and the prisoner was discharged.

The Court was crowded all day, and the trial excited great interest, lasting from ten o'clock in the morning to six at night.

Dowling A.C.J., 6 May 1836

Mr. Foster applied on the part of Benjamin Warby, that he be admitted to bail upon his own recognisance.  He understood the Attorney General did not intend to oppose the application.

Mr. Attorney General said - This man was tried in the court on Thursday, for receiving stolen cattle, and acquitted.  The circumstances not being known to your Honor, I will relate them.  The brother of Warby was tried last sessions for receiving stolen cattle and transported for the offence.  When he was taken into custody he executed a bill of sale of his property to his brother Benjamin, who claimed all the herd, among which, were some stolen cattle.  That bill of sale was afterwards set aside by an inquest held in that court, and the property confiscated to the crown, so that the fraud intended was defeated.  But the crown officers still thought it necessary to put Benjamin Warby upon his trial for the offence; he was so tried.  He received a very excellent character up to the time of this transaction, which character no doubt had a material weight with the jury, and to which in a great measure he was indebted for his acquittal.  But although he was acquitted, I hope the investigation will have a benefit if a notorious thief should be detected, and he openly executes a bill of sale, making over all his effects to another party for a trifling consideration, the bargain is legal.  But the opinion of Mr. Justice Burton is quite the reverse, and I am quite sure I have heard your Honor state frequently your opinion of the law which entirely coincided with that of Mr. Justice Burton.  I am determined, in the exercise of my official duties, that on every occasion where such a bill of sale is given, if it can be proved that any of the cattle should be stolen, I will in all such transactions, be the station or rank in life of the party what it may, make him stand his trial before a jury of his country.  The nature of the transaction is such, as to render it necessary thus to act towards every man who should be engaged in such dealings.  I will now submit to your Honor, that Benjamin Warby be allowed to enter into his own recognisance, (to a large amount) to appear when called upon.

The Acting Chief Justice addressing the Attorney General said, I trust the notice you have given will have the very satisfactory effect, of deterring all persons from being so imprudent as to place themselves in such jeopardy.  I therefore consent that Benjamin Warby be admitted to bail.