RESIDENT MAGISTRATE'S COURT.

Temuka Leader, Issue 2543, 17 August 1893, Page 3

RESIDENT MAGISTRATE'S COURT.

Temuka—Tuesday, Auqust 16th, 1893.

[Before C. A. Wray, Esq., R.M.] CIVIL CASES.

Margaret Patrick v. W. Newbury— Claim £5 10s. Judgment by default for amount claimed and costs. John Walker v. Matthews—Claim £2 3a 9d. Judgment by default for amount claimed a ad costs. J. Malarkey v. F. Parke.—Demand for the return of a mare, or £2O damages, its alleged value. Mr Salmond for plaintiff, and MiRaymond for defendant. Mr Salmond in opening the case, stated that the plaintiff was a farmer at Milfojfd, and his son for some time lived with him. The father owned certain horses; among which was the one the e»uae oi aotioa. It waa bred. oa tho plaqy,

Defendant desired the mare, and offered the sum of £lB for it. Plaintiff refused to take it. Some three weeks afterwards (in May 1892), he missed the mare, and found ifc waa in defendant's possession. He (Mr Salmond), was instructed to write to defendant, and an arrangement was made that he should pay £l3 for the mare. It was suggested that an allowance should be made for the use of the mare, but nothing was actually done, and defendant remained in possession of the mare until the present time.

John Malarkey, plaintiff, said he was the owner of the mare taken by Mr Parke in May, 1892. The mare waa bred on the place. The mother was bought from Donald McLean in Timaru between 8 and 9 years ago, for £25. She proved to be in foal, and that foal was the one in respect of which the action was brought. Had never parted with her. Mr Parke came several times about the mare and offered to buy her. Offered £ls for her. Told him he was not selling the mare. His son was present on one occasion. His son and Mr Parke took the mare into Timaru on or two occasions. Spoke to his son and Mr Parke about it. Mr Parka offered £3O for another mare shortly afterwards. The mare was brought back to his place after the Timaru trips. His son was away previous to this for about a year and nine months. His son was not staying with him at the time the mare was taken away to Timaru. His son had ridden the mare away to harvest, but brought it back when requested. The mare was taken away altogether after harvest, 1892. The inaro waa at the time in witness' paddock. Missed it the following morning, and did not hear anything more about her for three weeks, when he heard Mr Parke had her. Took legal advice at once, but previously went to Parke's house and requested the return of the mare. Subsequently noticed Parke riding the mare, but could not get an opportunity of speaking to him. After Parke had seen witness' solicitor, saw him at the saleyards, when he refused to give up the mare. Valued the mare at £2O. Could not bring an action before ; he was not fit.

" By Mr Raymond: By not fit meant he had not the cash. Had a few horses of his own and a small leasehold farm. His son was about 32 years of age. Paid him no wages, but allowed him to earn what he could with witness' horses. His son worked on witness' farm. The mare in question was a saddle mare. The other horses were working horses. Had never used a saddle horse for 30 years. Bought the mother of the mare for the use of the place. His son used it. The mother of the mare his son sold about 5 years' ago. Witness did not get the cash. His son sold the horse to please himself. The old mare was sold to Mr Uden, a neighbor. Had made no demand upon Mr Uden for the mare. Was told his son sold the youug mare to Mr Parke. Had never taken action against his son. The year after foaling the mare was put to the horse. Witness paid for the service. The mare in dispute was put to Hanlan, and his son paid for the service. It was not a fact the hack was bought for the son in place of wages. His son had the hack backwards and forwards as he wanted. Did not remember having a conversation with Mr Parke, and telling him that as his son had left him he had a good mind to sell his hack.

William Nelson, laborer, Milford : Had lived next Malarkey for 18 or 20 years. Knew the mare in dispute. Could not say what business relations existed between plaintiff and his son. " Mr Raymond, for the defence, said that the facts were that F. Malarkey, the son, who worked for his father without wages, asked for a hack for his own purposes. It was not required on the farm. The mare had a foal, which the son broke in himself. He subsequently sold the old mare to Mr Uden, and the father did not object. The son put the mare to Hanlau, paid the fee, and generally used it as his own for years. The son recently had no use for the mare and treated with Mr Parke for the sale of her. Mr Parke had no occasion for the horse, but agreed to buy. He heard subsequently from Mr Salmond the.re was a dispute about it, and offered to pay the father, as be had not then paid the son. On enquiry, however, he decided nvi; to do so, and dealt with Mr F. Malarkey as owner. He drew attention to the delay which had taken place before proceedings had been taken. He called, Fred. T. Parke, farmer, living at Milford : Had known plaintiff a long time. Was aware Frank Malarkey worked for his father. Knew the mare m dispute for some 6 years. Offered to buy a draught horse on one occasion. Afterwards on the road Malarkey said he had Frank's horse there, but he did not like to sell it on the boy. He was complaining that Frank had left him. Afterwards Frank came in May last year and offered to sell it to him. He wanted £l3. Told him he would give it if ho put the cover on. Had no idea there was any disagreement between \\\e father and son. On receipt of. a letter from Mr Salmond offered to pay the £l3 as he had not settled with the son. Saw Frank Malarkey subsequently, and refused to pay. Valued the mare at £l3. By Mr Salmond ; Malarkey did not offer to sell the ma,re in consequence of witness offering to buy. Would swear that Malarkey, senr., spoke, of the mare as Frank's. Had no actual doubt that the mare belonged to Frank, althous* offered to return the mar*- 1 - ~ _,- * ie senr., or pay him «- . ./V , rk £ y ' as he A iA ior lt- -^ aae the otter not want any dispute. Frank came to him and asked him to buy the maro as his father was growling about the feed. Had driven the mare into Timaru with Frank. Malarkey, senr., never said anything about it. The mare was brought to his place about half-past seven in the morning. Had a message from Malarkey, senr., about the mare after witness had. seen plaintiff's solicitor.

Frank Malarkoy, son of the plaintiff : Bad worked on his father's farm for 13 or 14 years. Received no wages, and was nearly always at work. The mother of the mare was bought by his father fof witness. His father bought it in Timaru, and gave it to him, saddle and bridle and all. She proved in foal. Sold the mare to Mr E. Udea for £B. His father did not interfere. The present mare was broken in by witness, and put to the horse. Paid the service foe himself. Left his father, and went to Glen-iti, and then to Rangitata. Used tho mare at itangi tata. His father never objected. Was out of work for abont a fortnight or so, and left tho mare in his father's paddock. Two or three months afterwards sold tho maro to Mr Parke. His father did not object, and had not spoken to witness about it. Was in regular work, and could have paid if applied to. Heard that his father had applied to Mr Parke through a solicitor, and advised him to take no notice.

By Mr Salmond : Tho hack was bought for his personal use and benefit. Tho maro in dispute is about 8 yoars old. Tt was only put to breed once. It was not arranged that if witness paid the service lie could have the foal. Tho old mare had another foal. It was killed iu barb wire. Tho foals were to bo grazed on the farin, It was. all lie {jot out of the place.

By Mr Raymond : The mare waa not required for the use of the farm. Hia Worship said it was a painful thing to decide between father and son. It appeared that the son had exercised acts of ownership over the old mare and the progeny without dispute, and he was quite entitled to dispose of them. Judgment would be for defendant, with eosts. The Court then rose.