RESIDENT MAGISTRATE'S COURT. CLYDE.

Dunstan Times, Issue 284, 4 October 1867, Page 2

RESIDENT MAGISTRATE'S COURT. CLYDE.

Tuesday, Ist. October. (Befoee W. H. Bobinsox Esq Wahdkx.) and J. D. Feraud Esq. J. P. M'Naughton v Cox :—lllegal detention of a Cow. Mr. Chappie for Plaintiff, Mr. W. 1. Bailey for defendant. Mr Chappie in opening his case, said, the present action was for the recovery of a cow the property of plaintiff, but now in possession of defendant. Two years ago, plaintiff purchased of one James 1 oran, five cows and four calves, but delivery was only made of five cows and three calves; about a month since, Doran went to plaintiff, and informed him, that the missing heifer calf, now a full grown cow was at the Dunstan and in the possession of defendant. James M'Nanghtou the plaintiff deposed : I hat, about two years ago he purchased from James Doran five cows and four calves • he paid and took a receipt for the same, with the exception of one heifer calf, all were delivered, Doran explained that it could not be found, but that it was all right, and he, plaintiff should have the heifer. About a month since, Doran called upon him, uml said the heifer was at the Dunstan, he went to Clyde, and Doran pointed it out to him, savin" that a Mr. Cox claimed ownership; applied to Cox for restitution, but was refused, on the grounds that he plaintiff must prove ownership. By Mr. Bailey; I have no memorandum of the purchase in my possession, when the Ovens Water Race broke away some time since, a lot of papers, including other things were washed out of my house. James Doran sworn, deposed : That on the Cth. Sept. 1805, he sold to plaintiff five cows and four calves, he was paid for them, and gave a receipt, the whole lot were delivered with the exception of one heifer calf, the same as the one now claimed, it is branded J.C. was present while it was branded in Cox's Yard. James Martin branded the heifer by Cox's histrnctions : witness remarked to (.'ox at the time, that the heifer belonged to plaintiff, told him so since : Cox replied, the plaintiff would know nothing at all about it. Cross examined by Mr. Bailey.—l sold the cattle to M'Naughton about the ninth or tenth September lSb7>, the receipt was not attested. I swear that the cow now claimed is one and the same, as the heifer calf I sold to plaintiff. I diil not brand the heifer, or put any private J mark upon it, defendant did not pay me ten : shillings per day to assist him in branding eat- ! tie ; the cow in question was branded about i twelve months ago, the brand was put upon the near rump ; should have told the plaintiff where ; the cow was before, but we were not upon I good terms, had behave asked me that question ' 1 should have told him. 1 never asked Cox to kill the lnifer, or put her out of the way. By the Bench :-When 1 sold the heifer, it Mas about nine months old. I am certain that the cow now claimed, is one am! the same 1 sold to plaintiff. David Rattray, sworn, deposed :- That about nine months ago, he assisted to brand some cattle for defendant, the witness Doran was pre sunt ; did not hear Doran have any conversation with defendant respecting the ownership of any cattle, they were talking together ; witness w as engaged at the time at a distance, heading the branding irons. By Mr. Bailey :—About the same time, Doran was working for Co>. This closed the case for Plaintiff. John Cox the defendant sworn, deposed : - That he was a publican and dairyman ; he purchased of the witness, Doran, six cows and seven calves, paid for the same ; receipt produced. The cow now in dispute, was then one of the seven calves that he purchased. It had never, since purchasing, been out of his possession. It was branded with his defendants brand. The witness, 1 >oran never advised him to kill the heifer, or sell it to a butcher, because it was too small to brand. Cross examined by Mr Chappie ;—The sale to me was bona fide, it was not because an adverse judgment had been obtained in this Court against Doran. Doran told me about the tim 0 of the sale, that the bailiffs were after him ; be gave into my possession six cows' and sovui calves, and the cow in question was one of the same calves that I then obtained. .lames Martin, sworn, deposed :—That he assisted defendant to brand some cattle. The wit ness Doran was also present; could not recollect having branded any particular beast ; did not hear Doran make a remark about any of the cattle belonging to other owners. This closed the ease. The Bench remarked upon the contradictory nature of the evidence, and dismissed the ease, with costs of Court, and ten shillings for witnesses expences. Holt v M'Dougall. Claim for £ti 10s Od, fifty two weeks rent of water from the Dunstan Water Race, at two shillings and six pence per week. Mr. Bailey appeared (by power of attorney) for defendant. James Holt the plaintiff, sworn, deposed,--That on the Bth Sept. 18Go, defendant came to him, and requested to rent a stream of water, for the use of his horses. At that time there was a stream running in the direction defendant wanted it, but he, plaintiff, was about to stop its running. Had presented a number of different accounts for the rent of the water to defendant, who promised payment by sending him to Mr George, of the Dunstan Hotel. By Mr. Bailey : never had any written agreement with defendant about the hire of the water. On the 9th Sept. last, he promised to pay him one shilling and six pence per week for the water, for the whole time, and to continue still to do so. Mr. George was supplied with water from the same branch race, as supplied defendant. James Smiley, Agent for Cobb and Co. deposed ;—That he heard defendant say that one shilling and six pence per week ought to lie enough for the water ; had seen him "using the water ; should think that the conversation, he heard between plaintiff and defendant related to something about the payment of an account furnished. Mr. Bailey argued that the race was a public race, and that any person had a right to take water from it. William R. George deposed ;—That he was the proprietor of the Dunstan Hotel, and previously of the Union Hotel; defendant had been

in the habit of stopping at his house with hia horses for the last eighteen months, and the horses had been kept in his witness, s stables ; defendant removed from the Union stables to the Dunstan stables ; witness's practice was to find water for his guests horses ; he paid for water from the Duiistan Water Race. Cross examined by plaintiff ;—I told you that 1 would not pay for water for the coach horses. This concluded the evidence. Mr. Bailey urged that the question turned upon the point of a landlord being obliged to supply his guests' horses with water. i'he Bench ruled, that there evidently existed an agreement on the part of M'Dougall t» pay for the water, and which was not denied ; they would therefore give a verdict for the amount claimed, and costs.