Resident Magistrate's Court.

Marlborough Express, Volume VII, Issue 421, 14 August 1872, Page 3

Resident Magistrate's Court.

BLENHEIM, MONDAY, AUG. 12m, 1872. [Before S. L. Muller, Esq., 11. M.] C. o’dWYEU V. P. RUSH, This was an action to recover £9/ value of a bay filly, and £5 damages for illegal detention, arising out of the disputed ownership to the said filly, alleged by the plaintiff to be his propexty. Mr Church appeared for the plaintiff, and Mr Rogers for the defendant.—Mu 0. O’Dwyer deposed that he was a farmer, residing at Spring Creek; that the filly in question was his, oxxt, of $a white-faced chesnut mare ; he had asked the defendant to give her up, and told him if he did not do so he would sue him for the value.—The plaintiff’s evidence was extremely ’ rambling and confused, consequently wq are compelled to give it in u very briefly sumpna-

rised form.—Peter O’Dwyer deposed that lie was a flax-dresser at Spring Creek, and brother to the plaintiff; he knew the filly to be the property of his brother. Shortly after the 23rd of July last he saw the filly in the pound at Big Bush ; he went there with his brother and other witnesses; the filly had been running at his place, he knew her when a foal. She was not branded; the last time he saw her was at the pound paddock ; he understood that defendant was to have been there, but he did not see him.—Humphrey Leary, a flaxdresser at Spring Creek, also deposed to knowing the filly in dispute ; had seen her when about three months old, and had seen her about once a month or so ever since. He met Rush, the defendant, near the pound, and told him he thought the filly was O’Dwyer’s; defendant said it was his; she was in pretty good condition ; if she had been branded he could have seen, but he could see no brand. Defendant had told him she was branded on one of the shoulders, he did not know which.:—William Delaney, a youth in the employ of Mr O’Dwyer, stated that he had seen the Ally shortly after the 23rd of July, she was in the pound ; had seen her many times ; he had been in the employ of Mr O’Dwyer about eight months; did not see any brand on her when in the pound ; had not seen her since.—By Mr Rogers : He went with O’Dwyer to the pound; was with him all the time they were there; did not see plaintiff offer any money to the poundkeeper; they did not take the filly out of the pound.—John Richardson, a flaxdresser at Spring Creek, knew the plaintiff and defendant; had seen the filly several times; went to the pound with Mr O’Dwyer and others; the filly was there ; he saw a brand on one shoulder, it was J S upside down ; had not seen the filly since. By Mr Rogers : The persons with him were the two O’Dwyers and Delaney. Witness was close by the plaintiff all the time; it might have been half an hour or so. Did not see the plaintiff offer the poundkeeper any money. Heard Mr Shepherd ask plaintiff if he was going to take the filly away, he answered, “ No, he would summon Rush for her.” Mr Rodgers briefly summarised the case for the defence, and called

Phillip Hush, who deposed, that he bought the mother of the filly off W’ Robinson ; the mare was in foal when he bought her ; the filly now in dispute was the offspring of that mare. He sold the mare at the time of the Agricultural Show to Mr Donaldson, it wns the Show before last, in Sinclair’s paddock; he attemptci to brand the foal at that time ; it was than about three or four months old, but the brand iron got too cold, and as Donaldson could not wait, he let her go; saw her once after* that, about 12 months ago, and did not see her again until she Avas in the pound, about the 12th of July ; he then claimed her ; several persons remarked how strongly she resembled her dam ; he borrowed Mr Shepherd’s iron, and branded her with it upside down and turned her out; heard shortly afterward that the plaintiff claimed her as his. —C. O’Dwyer called on witness a few days afterwards, said he had not seen the filly, but believed it A\ r as his ; witness said that she would probably be in the pound again in a few days, and he would let plaintiff know ; he could then come with witnesses and they would settle the matter by arbitration ; the filly was pounded again on the 23rd July; he sent word by James Robinson according to the agreement, but he saw nothing of O’DAvyer ; he heard afterwards that he had been there but did not stop; witness thought it strange that plaintiff should go away without seeing him, as he only lived about half-a-mile from the pound. By Mr Church : the value of the filly was about £5 ; he had been offered £4 for her; he knew her by the peculiar shape of her head and neck and the star on her forehead. He had often borrowed Mr Shepherd’s brand, and used it upside down, and had no hesitation in saying the filly was his property.—W. Robinson, John Harling, Joseph Wratt, and N. T, Prichard, gave similar and cor-r roborative evidence; they all deposed to having known the animal almost from its birth, and remarked the peculiarity of its shape and color; the witnesses were closely cross-examined by Mr Church, but with the exception of some slight >; inaccuracies of date, their evidence was remarkably clear. —Mr Rodger’s addressed the Court for the defence, and said the chief point to decide Avas the ownership, but supposing the plaintiff got judgment on that point the evidence sufficiently proved that she had been oA’ervalued, and that no damage bad been sustained by detention.—Mr Church replied, carefully reviewingall the evidence at considerable length. His Worship said aft er the most careful consideration of the evidence before the Court, he must give judgment for the defendant with £4 costs.

DONALDSON V. MAXWELL. The plaintiff in this case was not present. Mr Church appeared for the plaintiff, and applied for an adjournment, as he believed his client had been prevented from attending the Court b.y the flooded state of the river. The Bench granted the adjournment, on condition of allowing the defendant travelling expenses, as he had ridden thirty-five miles. The defendant, who appeared to have taken too much refreshment after his ride, was somewhat hard to please, and was eventually removed for contempt of Court, GAFNEY V. COWENS. Mr Rogers, from Adams and Kingdon, appeared for the plaintiff. The action was to recover £1 19s 9d, balance of account for board and lodging and pai't payment of three gallons of beer.—William Gafney deposed that defendant had boarded with him; the amount now claimed was due for board and lodging-—three weeks at 12s per week, and 3s 9d, half the cost of three gallons of beer purchased by him, and which defendant had agreed to pay for.— Cowens, who was without counsel, denied owing the money to Gafney at all ; he admitted being indebted to a Mrs Mason to the amount of 245; he only considered Gafney a fellow-lodger; he had always paid Mrs Mason ; to her he considered the 24s was due, and which he was willing to pay. He denied any knowledge of the beer. Mrs Mason had once asked him to go halves in buying two gallons of gin, but he had declined. By the Bench : He had not subpoenaed Mrs Mason, as she was living with Gafney, and he thought it would be useless.— After some further, but unimportant evidence, the case was adjourned for a week.