RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 2164, 17 February 1891, Page 3

RESIDENT MAGISTRATE'S COURT.

Tejotka—Monday, Feb. 16, 1891. [Before C. A. Wray, Esq., R.M.] UNLAWFUL ASSAULT. Darby Dunn .was charged with unlawfully assaulting and beating one Patrick O'Mara, on February 10th. Mr Salmond appeared for the informant, and Mr Hay appeared for the defendant. The witnesses were ordered out of Court.

Mr Salmond, after a few opening remarks called the informant, Patrick O'Mara, who having been sworn, said that he was a laborer, residing at Arowhenua. On the 10th February, in the forenoon, his wife took the horse and trap to meet the mid-day train. Accused (her son) accompanied her, and they left the horse and trap at ScannelPs, Main road. His wife said they intended waiting for the next train. He complained about the mare sweating. About five o'clock defendant followed him down the street and asked if the mare was sweating now. Eeplied that it was sweating a while ago. He said you are nothing but a r crawler and a liar. Some other offensive remarks were made and defendant said he was not a cripple now, and would hammer him, or words to that effect. When he got home defendant came up to him and asked if the mare was sweating then. Made no reply. Defendant caught him by the beard and commenced striking him on the face and head. After a time he let go and witness went to get the axe, which was at the firewood. His wife and her daughter took the axe away. Defendant followed after witness as he walked away and struck him with his walking stick and subsequently with his fist Held him there until Mr E Carr and Mr Ackroyd came up and made him let go. When released went to lay an information. His beard was torn and his face cut and bleeding and his mouth swelled. Ihe pipe was in bis mouth at the time and his teeth were all loosened, Defendis his stepson and had been living in his house since Christmas

By Mr Hay: Had married Mrs Dunn 18 months ago. Had not in this case beeen the aggressor. Had never struck Dunn. Dunn had been walking with a Btick. He threw it away to strike witness, When he said that he never raised his hand to Dunn he meant it literally. Mr Hay then proceeded to question witness as to a certain occasion some taree weeks back, but Mr Salmond objected, and His Worship upheld his objection. Witness continued : Had never in Dunn's presence charged his (witness'") wife with improper conduct. Had complained to his wife on the day in question that the mare seemed

to be sweating. It was at that time tied up in front of the hotel. Nothing had passed before that day between Dunn and he to lead defendant to call him a crawler and liar except Mrs O'Mara told defendant about witness' remarks about the mare sweating. When the row commenced Mrs O'Mara and Miss Dunn were not present. Michael Carr was in the next section. When Mrs, O'Mara came out defendant was striking witness. They were not wrestling. Would have hit him with the axe if Mrs O'Mara and his stepdaughter had not interfered- Defendant then hit him with the stick on the arm sufficiently hard to raise a lump. The premises where the assault took place belong to Mrs O'Mara; the horse to witness.

Michael Carr, .laborer, Arowhenua: On the 10th February saw Dunn strike O'Mara on the face'. Dunn held O'Mara by the shirt and ' witness heard his name mentioned and came across. Mrs O'Mara was blackguarding witness as the cause of the row. There was no bad feeling between Dunn and witness. O'Mara's face was badly cut and bleeding. i By Mr Hay: Mrs O'Mara was at the scene of the row before witness arrived. Witness was about two chains off! at the start of the row. O'Mara did not strike Dunn. O'Mara had the axe when witness arrived. Was present with O'Mara when he charged his wife with haviag the mare in a sweat By His Worship: O'Mara did not speak in an insulting way to his wife. Constable Morton: Saw O'Mara on the evening of 10th February. He was very much cut about. His left cheek was skinned and bleeding, and his nose swelled. He spat blood. His forehead had sevoral lumps on it. Knew both parties. O'Mara was an industrious man. Knew nothing against him. If annoyed he might be short-tempeied. Knew nothing about his domestic relations. O'Mara, when he laid the information, had no appearance of being in liquor For the defence Mr Hay called Darby Dunn, laborer, residing at Arowheuua: He owned the section where informant and witness' mother lived. Since Xmas they had all been living together. On the 10th February drove bis mothor to Temuka, about three-quarters of a mile. In consequence of what O'Mara had said to mother went to see him, and asked him to come and see the mare. He refused, and after a little argument witness called O'Mara a —— liar. O'Mara dared him to hit him. Witness said he would not hit him there. When they got home witness was taking the mare out of the trap. O'Mara came up and asked him what he meant by tackling him in Temuka for. Asked him what he meant by saying that the mare was sweating. They commenced arguing, and O'Mara struck him on the mouth. Was not prepared for that blow- Was ready for the next though. O'Mara struck at him again, but missed. Witness struck O'Mara, and when Mrs O'Mara and Miss Dunn came up they were " tangled " together. Witness let O'Mara go, and he went for the axe. Witness asked bira what he wanted with that, and he replied you I'll let you know. The axe was taken away and O'Mara walked away. Witness followed and hit him with a stick. This was the first occasion that he had hit O'Mara. O'Mara had hit him some three weeks ago when lying in bis bed By Mr Salmond: Had said to O'Mara in the town "If it wa'snt for where you are I would strike you." O'Mara had not attempted to take the mare out at the house. Had not touched her. Nobody was present when the row commenced. Had struck him in self-defence. Did not strike him with his fist after using the stick. Carr's evidence was false as to seeing him strike O'Mara with his fists

By His Worship: Had lived with his mother for eight weeks. Until three weeks ago was on good terms with his step-father. O'Mara lived with witness, not witness with O'Mara. His mother gave him the house. He bad not the title deeds. It was given to him before the marriage. Had been before the Court for fighting before, and was fined By His Worship : O'Mara had kept away from the house sinee the row Delia O'Mara: Had been married to O'Mara about 13 months. The defendant was her eldest son. The property belonged to him. She understood that it came to him after her first husband's death. On the 10th February witness and her daughter drove home with defendant. Left defendant outside. Heard a row land went out and saw O'Mara and her son grappling together. O'Mara cried out to be let go. Her son let him go and he went for the axe, She ran to him and her daughter took the axe away. Did not see any fighting afterwards. Stopped about till they calmed down. Had been insulted by her husband By Mr Salmond: Was insulted by her husband on the 10th. He asked where had the —— mare been. Was on bad terms with her husband. Was on better terms with her son, and needed to be. Until she heard a row did not come out. Did not hear any argument before that. Dunn had O'Mara by the coat Thought O'Mara had Dunn by the wrist. They were swaying one another about. She did not ask Dunn to let O'Mara go. O'Mara said, • For God's sake let me go !' When let go O'Mara picked up up thegaxe, He iooked as if he was

going to run at her son. Had no difficulty' in getting the axe away. Did not see her eon hit O'Mara with the stick. Was sure there was no blow struck after the axe was taken away. Dunn kept hold of O'Mara, and said he would hold him until the bobby came By Mr Hay: O'Mara spoke very roughly to her in the town. Saw Michael Carr there. He was on the outside of the fence looking on. The noise that brought her out was the sound of high wordß By His Worship: Hoped that now her son was living there she would be happier. Her husband was bachelorising, as he was before he was married. Her husband had abused her some months before, and she had complained to her son. She wanted to get her son into the house and her husband out.

His Worship said it was a most unhappy state of affairs, but only to be expected under the circumstances. He thought there might be faults on both sides, but it appeared the stepson was greatly to blame. Even if O'Mara had struck the first blow he had received undue punishment from the step-son, who hod used a great amount of violence. A penalty would be inflicted of 20s and costs, with solicitor's fee, in default Beven days' imprisonment. Defendant was cautioned as to his future conduct. GCTIL CASES.

David Charteris v J S Hayes—Claim for the return of a mare and £5 damages for the detention of same. Mr Hay for plaintiff, Mr Aspinall for defendant. D Charteris, carrier, deposed : On the 25th April bought a mare for £l3 from Dr Hayes. He said she had been served by the horse. Witness said that defendant would have to allow him £2 if she proved in foal. This was a month's hire for another horse while the mare he had bought could not work. This £2 had been returned. On the Bth November she had a foal. On the 6th December he worked her. Dr Hayes had never stipulated as to what was to be done about " spelling," the mare. Would have worked her before if the foal had been his own. Had twenty years years' experience. With a steady man the mare could be worked within a fortnight. Had himself done so without injury to mare or foal. On the 7th Dec the mare was taken to Timaru. Instructed his man to railk the mare on hie return. He himself had milked the mare on the way to Timaru. On the Monday was expecting to go to Mr Brown's to cart oats. Saw Dr Hayes who said that be did not want the mare worked. Witness said "He supposed he could do as be liked with his own." Oo the following day the mare was takeD out of the paddock. Saw Dr Hayes and said, " Yon've taken the mare from the paddock." He said " Yee." I Asked him when he intended to return the mare. He did not say anything. Asked him if he was going to allow him a horse in her place. Sent him a letter through his lawyer applying for the return of the mare. From the Bth December to the present date the witness had not seeD the mare. Dr Hayes had never soggested (bat the mare should be " spe'led " for any particular time. Tn reply to Mr Aspinall, witness said he had paid the instalments for tha mare as agreed. Witness detailed the several pay. ments &nd put in receipt in fuM. Had charged Dr Hayes £2 for the foal before the mare had foaled. He objected as he had not seen the foal. Fed the mare well with oats, chaff, and bran. It was good treatment to feed a mare on | oats and chaff. Had offered to sell the mare back to the doctor after she foaled for £ll. Preferred the mare to the money. This action was not a dodge to get rid of the mare. Bought another 'horse on the 13th December. Had previously bought one from Mr Gaild to put in the place of this mare. Assessed his damages through having to give his horses extra feed.

To Mr Hny : Had told Doggao that it *ould have paid better to bring the foal up on cow's mi'k. NotbiDg that was done hurt the mare, or was prejudicial to the foal. By Mc Aspinall: When the mire was bought witness did oot expect her to be in foil. By Mr Hay : Reckoned that it would cost £2 for another horse to replace the loss of the mare. By the Bench : Had lost the use of the raare for four weeks when she was taken away. Kees Thomas, who had had experience of horses since he was a boy, and David Fmdlay, who had had 40 years' experience, were called as experts. They said it was not detrimental to a foal to work a mare a month after foaling, if proper care WBS taken of her. It was a sort of fancy people had no', to work the mare for three months after foaling. Mr Aspinall applied for a nonsuit on the ground that the information set forth that the defendant caused the mare to be taken from the land of D. Charteris,

Mr Hay said the real wrong was the detention of the mare, not the removal of it from any particular paddock. His Worship did not consider it a nonsuit point, and counsel for the defendant agreed to waive the point. Mr Aspinall submitted that ihe arrangements were different to that suggested by plaintiff. It was, briefly, that the mare was to be sold for £l3, the foal to belong to defendant, and be left with the mare for three or four months at defendant's discretion.

John Shaw Hayes : The plaintiff wished to buy the mare, but he (defendant) was unwilling io part, as she was in foil. Plaintiff said he did not think Bhe was in foal. Witness Baid ' supposing she is in foil.' Defendant said he would take every care of it. Witness said that was not good enough. He should want to take care of it himself. Plaintiff asked how long he would want the mare ' spelled.' Witness said ' five months.' Plaintiff asked what he should do for a horse in the meantime. Witness said he did not care. He (plaintiff) could leave the mare. The agreement was to sell the

mare for £l3. If I tie mare foaled, as he would be at five months' loss, that he would refund him £2. Made this note—- ' Folly £ll if foals and 4 to 5 months <pell if necessary, £l3 if not in foal or -lips her foal.' The mare foaled on Nov, Bth in defendant's absence.' Before the tunre foaled Cbarteris had asked him for mother horse. Told him he could not do io„ Charteris asked before the mare foaled that she might be put in the paddock whare-he could look after her. On November 11th plaintiff said that it was hard to have to lose the use of the mare for five months. Told him he thought it a;ood interest to get £2 for the time. He isked for another horse, but lo'd him that he had Dot one to spare. The paddock was locked, and the key in defendant's possession. On the Bth December saw Ofaarteris leading the mare, with the foal following, and asked what he was doing with ber. He said he was <\ poor maD, and must work the mare. Did not know that the mare had been worked the previous Saturday. Told him that poor men must keep their agreements as well as rich men. Subsequently heard that the mare was taken to Tiraaru, and the foal left in the paddock. Found on examination that the paddock had been broken into by th 9 top staple of the gate having been lifted off. Made up his mind that he would have to remove the foal to safer quarters. When defendant took the mare and foal on the ground found the mare had been worked very hard. She was sorefooted and lame. The next morning Charteria asked him if the marß had been taken away, and seemed much annoyed. He asked would witness bring the roare back. He also asked witness to return the mare. He dec'ined till the five months were np. He said he would put it into Mr Hay's hands at once. The foal was what witness wunted.

By Mr Hay : The ftgreemeofc wbb read over to Charteris. Would swear that the words four or five months were written in at the same time. On May 2od gave a receipt embodying terms of payment. Nothing wbb then said about the four or five montbß. Did not tell Cbarteris how the £2 waa arrived at. it was c'9ar that he would be out of the use of the mare for rive months. Mr Hay : Did it not seem strange that he should agree to take £2 when he would have to pay 10a a week to hire a horao to replace her 1 Where did you take the mure 1 Witness : That's my business. I decline to answer.

Mr Hay submitted that it was a fair question, and asked the Court to press for au answer. It might be a question if the mare w<is to be left in witness' paddock. His Worship said he did not think thß question relevant. Miehael Duggan, waggoner in the employ of Aspinall and Co., had a conversation in May with Charteris. Told him he had bought the mare for £l3, was to get £2 back wheo she proved in foal, and was to be turned out four or five months to rear the foal. On the 27th September he asked if it was possible to buy a cow ind rear the foal on cow's milk. Said that he did not like pets ; he could ask tha doctor. Saw Charteris again on the Bch November, who Baid she had foaled ; that there was nothing to eat where she was, and where Bhould she be put. Told hiim the mare would probably be put to Deßenzy's as soon as the foal could walk, but that he would put her in the small paddock. Went for the doctor's groom to help him and the mare was put in the paddock and the gate locked. On the 6th December saw the foal in the paddock without tbe mare with a tar. paulian Over the gate. On that evening saw young Charteris putting the gate hangers through the post. Be told him he would see the doctor about it. Oc the Bih saw the mare again. Her feet were quite sore. Had a lot of experience in horses. Never heard of a mare being taken so far the first day she was taken from the foal. It was far more injurious to take the mare that distance off grass than off hard feed.

His Worship said that the principal question wbs as to the particulars of agreement. It seemed to him that looking at surroundiDg circumstances that after mure had foaled plaintiff took mare and foal to defendant's premises, he says, merely because be wanted feed. Did this fit ia with his statement or with that of defendant, which wag that it was to tie given into his poßßession to rear the foal. The defendant was very clear upon this point, and it seemed to His Worßhip that it was a correct statement of the agreement, and that the mare was never in plaintiffs possession except wrongfully. Judgment would be for ds. fendant. Solicitor's fee and costs of three witnesses, 245, would be allowed. On the application of Mr Aspinall, the case of Tay!er v. Kyne was reinstated ; to be heard that day fortnight. The Court then rose.