THE ACTION FOR MALICIOUS PROSECUTION.

Press, Volume XLIV, Issue 6835, 20 August 1887, Page 5

THE ACTION FOR MALICIOUS PROSECUTION.

[By Telegraph.]

[from our correspondent.]

TIMARU, August 19. The case of Bullivant v Herring was resumed this morning.

Mr Stringer, for the defence, called Christopher Grieve, who deposed that he had been in occupation of Pye's bush. Some years ago he worked the bush, and left it all cut away. Visited the gully about that time, to see if any timber had been cut in Graham's bush. The ric.kers cut in Pye's bush had apparently been cut at least three months.

John Nelson saw Toner and Bullivant in March, 1886. Saw them first that month on the sth. Spoke to Toner in Bolton's section, and told him there was plenty of bush all round. Pointed out Pye's bush, and told him the way to go thither. Toner asked which was the Company's section, and witness pointed_it out to him. There was a general conversation. Witness told him Mrs Pye's section was private property, to which he said, "Never mind, if the old lady says anything, tell her I'll marry her." Witness saw the dray stop just over the water-race, opposite Herring's bush, by the track. That day week be saw them go again towards the bush and waited for them to return, but as they did not comp. he went to see them. Found them carrying rickets, rafters, and wall-plates out of Herring's bush. Each time Toner and Buliivunt went to the bush they went in the middle of the day and returned at eight at night, except on the 27th_, when they returned at three o'clock in the afternoon. To Mr Wilding—Toner seemed anxious to avoid the Company's bush. I gave him directions. He did not say why he was so anxious to avoid the Company's busb. I could see the dray was ■ not opposite Pye's bush. There is no distinguishing mark. Never told Herring and the police until they came to mc one day. Plenty of people besides mc saw them take the timber away.

Charles Fooks said that when he prepared the plans produced made on June 2nd, 1886, he noticed that the boundary of Pye's and Herring's bush was indicated by a not very distinct survey line. To Mr Wilding he said that a non-expert could not very well tell where the line was. Had noticed that rickers had been lately cut both in Pye's and Herring's bush. John Hudson was in Herring's employment in March, 1886. Knew the bush, and had seen Toner and Bullivant in the bush more than once. Had met Toner coming out of Herring's bush carrying rickers, and saw him take them to the dray, which stood a chain and a half from the boundary on the track. Had a conversation with Toner, but Bullivant could not hear it. Could see the boundaries of the bush quite well. To Mr Wilding — Could not tell how many rickers Toner had in the dray. Saw rafters and wall plates in the dray, and believed this was the first time such timbers had been spoken of in Court. Toner told witness he thought he was cutting rickers in Pye's bush, but to the best of witness' knowledge he didn't say that Nelson had directed them there. Made no objection to Toner taking the rickers away, nor did he tell them to stop cutting. Told Herring three or four days' afterwards that the rickers had been taken, but did not say anything about the wall plates and rafters. William Brown said he was in the bush and saw Toner and Bullivant pass along in their dray. Later on he saw Toner coming out of the bush carrying sticks at a point just at the track to Herring's bnsh.

Edward Herring, the defendant, said several statements were put before him before he began the late actions. Mccormick's statement for one vras put before him. He believed these statements, and submitted them to Mr White. All the men who gave statements witness knew, and had reason to believe they made fair statements. Before the informations ■—-ere laid witness got further statements sent to Mr White. All along witness never learned anything to lead him to doubt the truth of any of the statements. He bad done nothing to cause tbe

delay in bringing the cases on. To Mr Wilding— The statements made in my letter to the Press were to the best of my knowledge true, but I intended the reflections I made in it to apply to the immediate district, not to the district in which Toner lived. I did not intend the letter to apply to Toner or Bullivant. I did not intend to apply the remark, " matrimonial infelicity " to my witnesses nor to Toner's witnesses. I have no ill feeling towards Toner, and bear him no ill-will. I may have spoken of him to people in the neighborhood as "a suspicious character,"' and may have told Constable Burke that he was a " highway robber." I had no feeling in the matter of re-opening the larceny case. Mr White told mc that he had good grounds for a prosecution for perjury against Toner and Bullivant. Archibald McCormick said that he furnished statements made by Nelson, Hutcheson, Brown, Geo. Botton, Moore, Greaves, and others. He believed all the statements to be fair ones, and did not add to them. To Mr Wilding—ln the statement he did not wish to injure Bulli- j vant nor Toner. I

Constable Bourke then gave an account of the events of the arrest, and said that he made it on his own authority. To Mr Wilding—Toner and I rode away on the same horse. I threatened to drag him, but not at the horse's tail, if he did not come quietly. I mode full inquiry into the case before I arrested Toner. Before this Herring told mc that Toner was a suspicious character.

Mr J. W. White then gave evidence respecting the cases he was engaged in. It being now 5.5 p.m., the Court, adjourned till 10.15 to-morrow.