Supplement to "Mail" and "Guardian."

TONER V HERRING.

MALICIOUS PROSECUTION.

Thil now celebrated " riokara " case has passed through ha fourth stage In our law courts. For the benefit of our readers it will be neeeaitry for as to give a short history of the tarione charges made by the above litigant! before publishing the evidenoe ad duced at tfie reoent trial at Timaru. It appears from evidence adduced at the various trials, that Mr Herring, who is manager of the Alford Estate, bad from time to time missed a quantity of timber from a 40 acre section of bosh at Alford Forest ; and according to a letter he wrote to the Press, a series of robberies had taken place for some time back on the estate. Herring m order, if possible, to pat a stop to the laroenies determined to proaeoute the first person he found stealing his employers' property and instructed his bushman accordingly. On the 81st Maroh, 1885, John Hutohieon, his bushman reported that he had seen Mr James Toner, a small farmer living m the neighbor hood — along with his man James Bullevant, taking saplings. Mr Herring satisfied him self of the fact, and forthwith went to Methven to inform the Constable of the dutriot, P. O. Burke— and to take out a summons. The Constable told Herring that be would have to go to Ashburton to procure one but that if he would wait until next day, he (tht Constable) would ride over to Alford Forest, enquire into the matter and if there wh sufficient evidenoe of the theft, would arrest Toner on his own responsibility. The Constable on visiting the bash saw that not only Baplings, but a quantity of larger stuff had been reoently out m the same part of the bush. At any rate the constable was so satisfied that a larceny had been committed) that accompanied by Herring the two went to Toner's place. Whilst thero the Constable noticed ends of timber corresponding with stumps of the same description m the Com pany's bosh and identical marks of notohes ; m the axe used. Toner was arrested, taken by thi Constable, en a horse,, to Methven on the Ist of April and on the following day to Aahburton, where he was brought before Mr Baddeley, B M., the police conducting the pro* Becution.and Mr Wilding defending. Toner was remanded and eventually fined 40s and costs for the larceny of saplings. An artiole shortly afterwards appeared m the Chriatchuroh r ' Press," severely commenting on tha conduct Of the constable and Herring and criticising the Magistrate's decision. Herring appears to have got nettled at what he called " the injustice of the artiole " and wrote a letter to the Press m whioh he spoke m very disparag ing terms of Toner, aocusing him of a previous larceny of timber. Toner, by his oounscl, Mr Wilding, served ft writ on Herring for libel contained m tbe letter to the Press, and for trespass, claim ing £800 damages for the libel and £200 for the trespass. The trial took plaoe'at the Supreme Court, Timara, on June 16th, 1886, before Mr as doe Johnston and a common Jury of four. Mr Geo. Harper was counsel for defendant. The result was that defendant had to pay £150 and costs. Mr Herring sometime within a month after the trial consulted Mr White of tbe firm of Messrs White and Co, Timaru, m reference to bringing an action ■gainst Toner and Bullevant for perjury whioh it was alleged they had made m the evidenoe they gave m the libel action on behalf of the prosecution. Herring appears to have plaoed a large amount of evidenoe m Mr White's hands, but m consequence of Mr White's being engaged m the Hall and Cain eases, the matter was not brought before the public until twelve months after the libel action. The charges of perjury against Toner and Bullevant were hearcf m the Ashburton Court on June 27th and 28th, respectively before J. Ollivier Esq, B.M. and Messrs W. 9. Steward and Hugo Friedlander, J.P.s tho malt being that both Toner and Ballevant were committed to take their trial for perjury it the Supreme Court, Chrietohuroh. A few days before the sessions opened the Crown Prosecutor informed Herring that the Crown refused to take up the case. Herring then became responsible for carrying on the prose tions. Begina v Toner, and Begtna v Bullevant, although only enmmoned to give evidenoe as a witness m the case. The day before : (Sanday intervening) the Oourt opened Herring secured the services of Mr Stringer as oounsel instructed by Mr White. The Grand Jury without (it appeared m evidenoe m the recent action) having examined all the witnesses threw out the Bills. Thereupon Toner v Bullevant took im* mediate action to vindicate their characters and instituted proceeding against Herring for malicious prosecution, each claiming^ £500 damages. As will be seen from the following account of tbe trial, a verdict was entered for the defendant Herring with costs on the middle scale, the Jadge certifying for a speoia jury second counsel and costs of jury for two full days, the verdict being— "We find that the plaintiff has failed to prove his innocence.''

SUPREME COURT.

CIVIL SESSIONS.

TIMABU— Thursday., Acgubt 18.

(Before His Honor Mr Justice Johnßton, and aepeoial jury of four.)

MALICIOUS PBOBECOTION.

Bulletant v Herring, claim £500. The following wen the jury, Messrs C. H. Clark, B. A. Pigeon, 0. Palliser, and Geo. Tilbot. Mr G«0. T&lbot was ohosen foreman. Mr Wilding appeared for plaintiff, Mr Stringer, with htm Mr Raymond, imtrooted by Mesnri White and Co., for defendant. Mr Wilding stated the case for plaintiff, which was m brief to the effect that last January the defendant had mulioiouily

prosecuted him (plaintiff) for perjury m ' connection with an action Toner v Her* ring heard last year, and that the statements of defendant m taking such action were oontrary to troth. Plaintiff therefore, having been subjected to annoyance and loss, now olaimed £400 damagee, and £100 expenses. For the defence it was admitted that Euoh proseoution was commenced, but they bad reasonable and proper canße to believe the perjury had been oommitted, having reoeived apparently reliable information, and also, advice from counsel before taking action. Counsel then stated the faots, m brief. In the course of his address Mr Wilding read the letter to the Press and whilst doing go commented on certain statements con* tamed m it when His Honor disallowed oounsel to make running comments. The plaintiff was then called. James Bullevant, gas-fitter said— He worked for Mr Jf Toner of Alford Forest, aoeompanied Toner m March, 1886 to out riokers m the bush. Did not know were wo were going to cat them. Toner said we will go to Pye's bush. Asked a man named Nelson where we could get some riokers. Ho said " outside Boulton's yard." Was on the road near what I now know is the Company's bush. I did not know at the time whoso bußh it was. Never heard any tbingabout Mrs Pye's. Did not hear Toner say anything to Nelson about the old woman (Mrs Pye). Said I did not at the trial at Timarn. Was not close to Nelson and Toner. They spoke two or three words when I was m the dray but I could not hear them. Nelson said if we went past the onlvert on the road we should be clear of the Company's bush. (Plan produoed)' The witness then showed on plan the place where they out the rickers. Continuing said — " We vrent there past the culvert, I cut some rickers, I did not out any anywhere else. Toner did not cut any, We WBnt straight through Pye's bush, we were not m Herring's bush at all. Said all this but the last sentence. I was there with the surveyors. I did not hear of any charge of perjury until Satnrday before the trial m Ashburton that I was going to be tried on the 16th June. Herring spoke to me one day when cutting fences. He was on horseback, Ho asked me "if I had any more lies to tell " I said—" If he oame to me I would let him know." This was m Ootober laßt. It cost me £27 6s defending the case for perjury. Left work on Monday, and got back the following Wednesday week. Lost 8 days, was working for £1 a week. To Mr Stringer — Had not been m Toner's service many weeks, five or bix. On the 27th March went with Toner to out riekers a few daya before Toner was arrested. This was the only time I went to cut rickers with Toner. (Showed the way he went on plan). Left the dray overtbo culvert, went acroßs the section over a gully. There was no bush until near oreek on far side. Herring's bush extends to road Bide. Walked across cut out bush 15 ohains. Was with Mr Fooks before the trial June 16tb, 1886. I swear m March I wag never m Herring's bush. Knew on Jnne 16, 1886, from surveyor* whioh was Herring's bush and which was Pye's. Wo carried the riokers on our backs and did not take the dray into the bush be cause there was no road. Noticed two tracks into Company's bush, did not go into Her ring's bush until we went m with the surveyor. Was never mit before that. Toner Baid to Nelson "we want to go into Pyo's benh " Nelson said — " There's a bush over the road, if yon go over the culvert you'll be oppoiite Pye's bash. I was too far away to hear all that was said, I waß away with the dray — two or three ohains away. Toner got out of the dray and went into Boulton's section, I : think he did not see any stacking going on — j all was done. I saw no other man about, Nelson was m the yard. He came to meet Toner, they mot half-way between the stack and me. Toner then joined me m the dray. I ! did not say Toner didn't say. "If the old I woman turns rußty I'll marry- her." Could ! have heard him if he spoke m his ordinary voice. If he had Baid anything about Mrs Pye I should have heard it. Was harvesting for Toner before the 27th Maroh, 1886. I 1 helped to put up a whare, most of it was up before I went. The roof was on, the riokers were for battens to keep the thatch on. Went along the river-bed to get timber. Took a tomahawk to out rickerß, Never took an axe, Know Goldsmith the blacksmith. The only day we wont, m Maroh, we sharpened the tomahawk at the shop. It was notohed but we ground the notches out. Don't remember that Goldsmith spoke of it. It was within a week of Toner's arrest. I was slightly deaf at the Ashburton Court, I heard witnesses say at the Ashburton Court, I had been seen on other dates than Maroh 27th m the bush. (Mr Wilding took exception to this, Bullevant was a prisoner when this evidence was given and it was not fair to call on him now to speak of their evidence. Let counsel call the witnesses themselves. His Honor upheld Mr Wilding's objection and disallowed the line of iross- examination) Did not know Mr Herring until Toner's trial for larceny. Am a perfect stranger to him. By Mr Wilding— Do not keep any dates. Don'tpretend to know. Am not an experienced bushman. Mr A. E. G. Rhodes Barrister, and Solicitor had held a brief m tho case, Herring v. Toner — Took full notes at the time, Bulle vant said m re-examination on that occasion, " Had never on any previous ocoasion been m the Company's bush." Have no notes of bis saying "Have never been there at all." To Mr Stringer — I think ho meant by the previous occasion the time thoy wont to Pyo's bush. He admitted that he had beon there • with the Surveyor. He-Examined — Tho mail question m the case was where the rickers wero cut on that occasion. Bullevant and Toner sworo they cut them m one spot, Hutchison sworo they ctrt them m another. J. T. W. Clayton, solicitor— took notes m the caso " Herring v Toner." Herring was sworn on that occasion. In cross-examination he was asked whother at the Timara trial for libel he bad offered to compromise the case Herring said — "I said I would not give more than £50 to settle the action Toner had brought ttgainßt me; Horring added. If Toner had taken tho £50 ho should not have had occasion to lay tho charge of perjury. I believo it was made before the trial at Timaru, but cannot say positively. W. T. Chapman, farmer, said— He knew the Alford Forest district. Had held publio officos there and knew the people. Had been nine years Chairman of School Committee. Gave evidence for Toner m the libel action. Knew Pye's bush, Saw Toner and Bullevant after the trial for larceny, Met them on the road and thoy asked witness if he oould show them the two seotions, Went with them to whera they said they cut the rickers. Knew Toner, but was not particularly ac quainted with him; had seen him two or three times before. Met them on the road by Fagan'B, they showed the place (marked on plan) where they had been, it was between 1 and 2 chains from Herring's bUBh. There were marks of out riokers, cut with a blunt axe, or they bad been cut by an unskilled person, it was about a fortnight before the Timaru oaso. About 60 rickerß, more or less, had been cut. Bickers aro young plants which grow up after tho old stumps have beon cut out. Read Herring's letter to tho "Press." There waß no well defined boundary be tween the two bushes, but at the two ends. The other part was ont out bush. At the lower end were saplings and riokers. An opening through them showed peg about 1 chain. The place where the riokers were out was within two or three chains of that boundary. There ii no visible boundary line to tbe road bat (or a

few ohains. Was agent for Mrs Pye at the time. Let the property and house two or three iimes. There was no bush oxcept old logs of any practical value. Never heard that Mrs Pye objeoted to rickers being taken. Did not give Toner leave to cut riokers. There was no fence cetween the bush and the road between the two bushes. Cattle went through it. Riokers are worth 5s per 100 m the bush and 10s per 100 out and out of bush. By Mr Stringer — Visited it after the perjury caso. I looked at tbe boundary lino. Saw some stump marks freshly out to define the line. Saw three marks, Can see the peg from tha road. Could see the line only for a short distance m Marob. Was m Court m Timatu. Did not hear Bullevant's evidenoe. Let Mrs Pye's house and section to Valentine Ellen for about 0 months. He had leave to cut wood. Before that Grieve had it 5 years. Grieve out the greater portion out. Anybody wanting rickors would have to go to where Bullevant and Toner said they got them. Timber was carted out. There were certainly traoks of drays or sledges. Would not say if it would be easier to carry riokers to the road by Herring's bush. Ro-examinined— Saw Herring m the train after the trial at Timaru. He referred to the evidence given at the trial and said he bolieved that he (Chapman) was tbe only wit ness against him who had spoken the truth. A. E G. Rhodes— recalled. Hod heard statements about negotiations for settlement out of Court, This was after Bullevaiit's evidence i>> chief. To Mr Stringer -It was before the reoall of Bullevant, James Toner, farmer, Alford Forest — plaintiff m tho action "Toner v. Herring" said: I know the defendant. The Company's land is all round mine. The question of receiving evidence of malice was here settled by bis Honor who ruled that evidence not indicating personal feeling, but merely" malice m law," that is, somo motive other than a desire to farther the endsof justice might be admitted aa quite relevant. " The one thing meant a bad state of mind against the individual, the other meant a bad state of mind concerning the transaction." Examination continued — I occupied land before Herring camo— about 5 years ago. Had been on bad terms with Horring, but for a short time. The first difference was over exchange of a section I had previously made with Corsbie, the former managor. Then there was a difference about a ploughing affair. Afterwards about a section of my brother's who wanted a prioe Herring would not give. Herring expressed himself m bad , terms to me, and ordered mo off his premises. Said he would not have an Irishman on his ' place. Remembered a letter at tbe trial m Timaru written to Bernard Toner. Had looked for it since tbo trial but could not find it. The letter said we wero man English colony and not m Connemara, shooting land lords from bohind stonewalls, and dynamiters and more to that effect. Thero was some thing too about tho length of our purse and the justice of our cause. This was not about tho riokers' affair, but about my brother's sec tion — about not breaking up 100 acres. In Ashburton Court Horring said he wrote an inflammatory letter m reply to an inflam matory letter. By Mr Wilding— Did he say it was read? He said both were road. Wo were not on good terms. It was March when I went to get riokerß. It was on a Saturday. Knew where to go. Nelson had told me previously where I could get riokers. Nelson had been m Company's aervice before that. I got tho xickera for a sheep yard. I saw Nelson on tho way* I got out of the dray and went through Boulton's gate. Nelson was at the corner of a oornstaok. He came to me. I asked him where I could get a few rickers. He came a short distance up the road and told me that when I had passed the flood gate of water race 1 was to go over a oulvert, and that then I should be past Herring's bush ; that Pyo's section was on the left hand side and that I could get the riokers at the end of Mrs Pye's section. Bullevant was m the dray, I think he got oat of the dray. Never rom ember Baying I would marry Mrs Pye. I took care not to go into Herring's bush on aocount of Herring and I being at variance), We went 15 Chains off the road to out rickers. We out them along a deep oreek. (plan produced.) Am sure I kept quite dear of tho Company's bußh on that day. Bullevant cut them all; about 40. Tho rickers were two inches diameter about thickness of my wrist. (His Honor re marked that witnesses' wrist was more than two inches): Used some as spars to tie tho thatch on. They were poor and not worth more than 3s 6d and not that. After we ant them I saw Hutchison when we were yoking up the horse to go away. Hutchison said I was m Herring's bußh, I said I was not. I eaid supposing I had been, Herriug could not say much as the rickers were not worth much. I did not know which was right, Hutchison or Nelson. It was between 12 and 1 o'olook. The dray was on the publio road, Might havo heard any ono chopping largo timber m the bush. Never heard any more of it until tho policeman and Herring I oamo and arrested me, about Ist of April, Herring said " Good-day Mr Toner," I said " Good-day Mr Herring." Tho polioeman had no warrant. I asked him. Horring said " This is the polioeman," I said " I knew him." The policeman struok me on the shoulder and said I had been stealing Mr Herring's timber. I denied it. I told him my conversation with Nelson. The riokers were laid there. Both saw them, He (the policeman) asked me whoro I stayed, I told him m the stable, that they know tho house was burned. They wont into tho obaff-houeo and searched it. Herring took the lid off the camp-oven. Tho policeman lifted op the cover and asked Herring if he saw anything j thore belonging to him. Herring said be did ' not. Tbo polioeman said I must go with hi ai to Methven. I asked him if he had a horse, Herring was present at the time, I said I had| a sprained ancle. He said he would trail me behind tbo horso with a rope if I wouldn't go quietly, I rode on tbe same horse with tho policeman to Methven. I rode on the saddle, he rodo behind. I was locked up at Methven and token the following morning to Ashburton. I was fined 40s and costs. The Magistrate suggested I should have been summoned civilly. Did not know whether Horring agreed to that or not. Presume he did not as tho criminal case went on. Then camo Herrings letter to the "Prasi" At that time I did not know whether tho rickors were got m Herring's bush or Pye's, not till after Burvey. I applied for a rehearing after I found I had not been m Herring's bush. Tbe rohoaring was not granted. Heard Rullevant's ovidonoo hero and m Ashburton. Had also heard Herring's evidence on each occasion. Herring was askod m * Ashburton Court if he had paid the £50 if be would have : gone on with the perjury ohargo. Did not haar 1 a word about the charge of perjury till the policaman came with a summons. Herring was asked why he had not asked for a new trial. He said Mr White was engaged with tho Hall case. Mr Stringer— ln opening his cross-examina tion was about to ask witness whether ho was certain at the trial m Timaru that he never was on Herring's ground, when Mr Wilding strongly objeoted to the question being put, drawing Hii Honor's attention to Mr Her ring'e prosence m court industriously taking notes bb well ai to the numerous prosecutions instituted by that gentleman. He thought witness should not be asked to criminate him self. Mr Stringer submitted tho question to bin Honor, and said if witness rogarded this as a reason for not answering, he must set it up ac an objeotion. He asked the Witness would ha answer it or not.

Witness— l'll be guidod by Mr Wilding. Mr Wilding— Then 1 advise you "Don't answer the question." Cross-examination continued— lf the nut veyor is correct I was not on Herring's section on the 27th of March. I pointed out the place to Mr Fooka where I cut the riokers. I was never m Herring's bush but onoe and that was when the sur veyors were there. Never m tho bush for thejpurpose of getting riokers but on the 27th. It was my first visit. Aftor the ABhburton trial I!went with the surveyors, soon after the trial m Ashburton. I wont say it was or was not m Herring's bush. It was my first vißit on the 27th. Waß not m Herring's bush before the month of March or earlier m March. I never got riokers or auy timber before that m either bush. Never before with Bullevant. Never got any timber from this looality before. Bullevant was with me whon I was with Nelson. He could hayo heard every word I said. Nelson walked with tno down the road alongside the dray. When I got to Pye's eeotion we had to walk 15 chains to the place where we out the rickera. Did not take a dray m, there wan no track that I saw. Hutchison was the only person I saw. Left about 10 o'clock. Did not go with Bullovant to Goldsmith's Bhop. Sharpened a toma hawk. Oould not say what day. Don't Bay it was that day. We passed Goldsmith'p. Only went onco to sharpen axe. Wns carting timber for Allan Moßao. At 'I imaru, Bullevant said with me that ha had not been m Her rings bush prior to March 27th. Was about 1£ hour there. Was careful not to get off the road into Horring's seotion. Wo crossed tho culvert. I am not confounding the water race with the culvert. I am not on bad terms with anyone but Herring. lam a peaceable man. By Mr Wilding— Required no rickers for any other purpose than for roofing house. Did not cut anything but riokers. Herring charged me with stealing wallplatssancl rafters etc, but I was not accused of stealing wall plates and rafters m Court. I got ray timber for house from Jimmy Boss, part from Sam Doak— what was left from his stablo— and part from river-bed. This was the case- for the plaintiff, but Mr Wilding m closing it intimated that if part of tho defence sbould be a plea that plain tiff's party had been m Herring's bush m Maroh and anterior thereto, ho should claim the right to call robutting ovidonoo. Mr Stringor objected — His learned friend should call all bis evidence now. He should m his prosecution anticipate and cover the ground taken up by the defenco. Tho question was argued at some- length but His Honor declined to answer categori cally on the Bubjeot. Ho gave Mr Wilding the alternative of calling his supplementary euidenoe now or of closing his case, and taking his chanoo hereafter of being allowed to rebut particular evidence for the defence. Mr Wilding decided to olose the case. Mr Stringer before opening the case for the defendant, asked that the plaintiff should be non-suited on the ground that no ovidence had been adduced of malice. Counsel addressed the Court at some length. And quoted authorities, Mr Wilding roplied and the question was dismissed. Finally His Honor refused tho non-suit but reserved leave for defendant to move hereafter. Mr Stringer m opening the case for the defendant cited tho most recent decision m the English Court of appeal on malioious prosecutions viz. Arbreth v: N.Z. Railway Company, Law Journal 52. Q.B. 620 Bewen L.J> This is an action for malioiouß prose cution m which the plaintiff has to prove firßt that he was an innocent man, and that his innocence was pronounoed by the tribunal before which the aocußation wai made. Seoondly, thore wqb a want of reason, ftble aod probable canso for the original prosecution or m other words, he has to prove circumstances, which m tho opinion of the Judge are inconsistent with reasonable and probable oause, find lastly, that tho un reasonable proceedings of which he oom plains were initiated m a malioious spirit, i.e., from an iadireot and improper motive and not m furtherance of justice. Counsel proceeded te say that he should substantiate the charge of perjury by shewing by overwhelming evidence that the parties were m the bush on several ooonsiona other than the one specified. Mr Wilding objeoted fo this as outside the pleadings and considerable argument ensued. His Honor overruled the objection. Mr Stringer having completed his opening address His Honor adjourned the Court until 10.30 a.m. next day. On the Court resuming, Mr Stringer oallod the following witnesses for the defence. Christopher Grieve, bußhman, Alford Foreit. Recognised tbo correctness of plan produced. Had been m occupation of Pye's buih four years ago. Worked the bush and left it all out away. Know tho gully (marked on plan). Riokers could be got out by dray track. Remember the Toner lnroeny caie. Visited tho place Bhortly after the trial m company with John Moore, to see if any rickers had been out m Graham's bush. Had hoard say they had been cut thoro. Saw the part of bush marked on plan. Tho riokara out m Pye's bush had not then beon recently cut. Was there m April 1880. They were dry. Know the dividing lino be tween Herring's bußh and Pyo's seotions. It hai been there ten years to my knowledge. It was oat on both Bides. There is a gully between Pye's swampy ground and Herring's bush. Enow the traok into Herring's bush. To Mr Wilding — I hava conversed with Mr Chapman about the case. I know N/olson. I have talked with him also about the cutting of the timber. I do not know exactly what was said by us. Have since the trial visited the plaoo where Herring enid ho (Bullevant) out the riokers. It was last week — a weok ago yesterday. John Moore is Mr Graham's manager. There are riokers growing there— a good many. Riokers would perhaps die quioker if cut with a blunt axe than if out clean. Tho cutting was not a bushman's work. I oould not say if it was like a gas fitter's work. Nelson asked mo to cut some timber for him, then, after Toner's arrest asked mo not, as ho said he might got into a row. Some of it was on Tisoh's bush along side tho road, some partly m Company's bush close to road. Ido not remember any one being prosecuted for outting rickers before. The bußh is unfencod, cattle run through it. Valentine Ellen, bushman, Alford Forost — Had a lease of Mrs Pye's seotion two yuars ago. Know the gully (marked on plan). Cut rickera thoro (pointing to placo marked on plan whore Bullevant said he cut them) more than two'years ago. Since they were cut, out a few moro on the seotion. Cut them all within throe or four chains. Cut about ICO altogether. Had oroised tho gully last Thuriday with Fooka and Herring. Out the riokers which he (Mr Fooka) pointed out. A dray oould hava been taken to within two ohains. To Mr Wilding— Have not had much ex perienco m bush work. Did not know muoh about it when I cut the rickers. The atumpi iplit when I cut. A dray could bo got m. I did not go all over tho bush. I went into ■mall patchos. I used a dray for bush work, Rfi-examincd— Saw no recontlyout stumps. Cut tho rickera with a half axe. Two othori were with rao. Ono, my brother, used a toma hawk. Ho was about 1!) years old. George Henry Goldsmith, blacksmith. Bpringburn, vied to liro at Alford Forost — Know Toner and Bullevant. Saw them at my shop at Alford Foreit ton or twelve daya 1 before I left. They told me they were going to tUo bail) to f«t iom« rio^etßi T h » T

sharpened an axe before going. It was a bad ' axe — an old one. Ido not charge for use of grindstone. I left Alford Forest on the 23rd March, 1886. John Nelson, bushman, Alford Foroßt— Had lived opposite Herring's bush eleven years. I Know Toner and Bullevant. Saw them at Boulton's m March of last year. - The first time I saw them 'here was Maroh sth. Toner camo up to where we were stacking. They had a dray and two horses. Toner came into* Boulton's yard and asked me whore he could get a few riokers. I told him that there wai plenty of bush all round. He asked me where Pye's seotion was. I told him that he wasto go across the water race two or three ohains and he would be opposite Pye'a buah. Toner asked where tbe Company's section was. I pointed it out to him. He said be would go to Pye's section. I said that is private property too. He said "Nevermind if the old lady Bays anything tell her I'll marry her." Bullevant stopped at the dray. \ I walked down towards Boulton's fence with Toner. Toner would bo one chain from the dray. I was about one and a half chains away. I wont down to the fonoo and saw them going ap the road. Tho dray stopped quite con venient to the water race, opposite Herring's bush. I again saw them that day week. Saw them go up tho road to the same place. Waited for them but as they did not return I went to see them, Found them carrying rrckers, rafters and wallplatea out of Herring's bush. The rickers lay on tho side of road near the dray. The timber was rafters wallplates and tie beams. I spoke to Toner. He owed me money. I asked him for it. I saw them again on the 27th. I saw them — Tonor and Bullevant. Saw Hutchison that afternoon m the bush. Whon they were coming back I saw there was timber m the dray bat did not take much notice of it. On tho sth Corry and Lake were stacking. The (stacking lasted four days. Corry left on the sth. Eitoh timo Toner and Bullovant went to the bush they went m the middle of tho day and re' turned at eight at night, except on the 27th when they returned at two or three m the afternoon. Went into the bush a day or two after and saw some fresh cut stumps of all sorts of timber. Itemember Bullevant saying ho had not been m Herring's bush at all. To Mr Wilding - I can read and write, but have not practised- writing for 23 years I take notes, but I keep them to myself. Gave evidenoe on Herring's behalf soveral times. Have not Bpoken to Mr Grieve to-day. Worked for Mr Horring threo years ago. Asked Mr Herring's leave to take firewood out of hiß bnsh. I got permission. I did not agree with Grieve to out timber for me. So far as I remember, Grieve asked me to give him tho job of cutting timber—ho owed me a little money. Ido not know whose timber it was on the road side I cut the posts out of dend timber about a chain above whoro Toner went m. Toner seemed anxious to avoid the Company's bush. Told him to go two or threo chains abovo tho water race. It would be a quarter of a mile from where we were stacking. I waa on the staok. I should th<nk I could see him. Whon tho dray stopped I was standing where they left mo, 17 or 18 chains away. I could see that tho dray was not opposite Pye's bush. There is no distinguishing mirk. Did not tell Toner he had made a mistake. I gave no information. Plenty of people besides me saw thorn take timber away. Bullevant was about one chain from Tonor, when Toner spoke about Mrs Pyo. Bullovant was on the dray. lam not awarn that m Ashburton I said Bullevant was four chains from the dray. Am oertain as to dates. I did not m Timaru give dates because I did not remomber them until I got home. I havo not always been a teetotaller. Belong to tho Temperanco Lodge at Alford Forest. Was treasurer for 18 months, Gave it op last January because I broke the pledge. I had the funds of tho Society. I used some of the money m breaking the pledge. Whether the Society ever got trie funds, has not, I consider anything to do with the case. (Mr Wilditg— Oh ! that is for the jury.) I do not tako an oath, I made a promise. Herring and the policeman asked mo about tho 27th. At that conversation I did not refer to any other date than the 27th. I told thorn what I saw on that day. Toner and I were not on speaking terms of late. I told Mr Knight thnt " if I oame to Timaru it would bo hot for Toner," beoauso I was speaking to Toner when he was stealing the timber. Re-examined— Tho two posts got from the bush were from an old dead tree. It was on the open ground. Caroline Boulton, wife of Richard Bonlton, Alford Forest— l live opposite Herring's bush. We began etaoking oats early m Maroh 1886. Saw Toner about that time. Saw him talk ing to Nelson who was working for us. He (Tonor) said he wanted earns bush stnff. Nelson said there was plenty all round. He pointed out tho Company's buih and said it was private property. Ho said Pye'a bush was private property. Toner said m reply " Never mind tell the old girl I'll marry her." Saw a dray and Bullevant. It was about a couple of ohains off, if that. I was about the xame distance on tho othor side. Toner spoke m a loud voice. Saw them go up the road to opposite Company's bnsh— two or threo chaim. I afterwards saw tho dray opposite. Tho dray was turned round io lot thorn get tho stuff m. I law them when I was picking up wood. Thoy were on tho track bringing the stuff out. I saw them bringing the stuff. I saw them twice after that during March. They got timber on both oooasions somewhere about tha same place. Wilson doeß not live near us now. Brown lives m our house but is seldom at home. My husband was employed by Mr Herring before tho libel case and i« now — only just now. Have not Been anybody else autting timber m Herring's bußh. Did not know Bullevant and Toner. Did not know Toner except by Bight. Did not hear Toner say to Nelson that be did not want to go into Herring's bush. On each date ho had wall plates, rafters and rickors. Did not think about it. It was talked about on a Sunday whon neighbors oamo m. Received a visit from Mr White and Mr Herring on the Sun day before the charge of perjury m Ash burton. By Mr Wilding—Who was present ? Nelson, Brown, Carry, Hutohison and myself. I told them all I know. Next oame the perjury case. By Mr Stringer— My husband gets occasional jobß from Mr Herring and has dono for years. Charlea Lake, waggoner, Alford Forest — Havo been m tho Alford Forest district somo timo. In March, 1886 1 was at Mr Boulton's. I was carting m from paddock to stack. I paw Toner and Bullevant about tho first week m Maroh, to my mind. They passed by Boulton's yard going to Herring's bush. Toner came to Nelson. . After speaking some time they wont on towards the bußh. (plan produoed). The dray stopped just aoross tha water race. lam positive it was not over the bridge. I did not see thara out timber. They returned about dark. It was about noon when thoy wont to the bußh. By Mr Stringer— Havo not spoken to Mr Herring until last night— hero m Timaru. Benjamin Corry, laborer, Alford Forest — Was stacking at Boulton's March 4 and 5. Remember tho datoi beoause of leaving home for tha Weit Coast on Monday the Bth. Saw Toneijind Nelson conversing once. Had seen Bullovant, bat recognised him impar feotly at ABhburton. By Mr Wilding— l loft for the Weit Coast on a Monday, not Saturday. I do not generally keop a record of dates. I was at the Sunday mooting at Boulton's. They all heard what I had to say. 1 heard none of the conversation between Toner and Nelson. I d.on.'t remember easing Mrs Boultoo about,

He-examined — Returned on November Bth from the West Coast. Then I wont off shearing, George BouHon — I am eon of Ktohard Boulton, Am 15 .years old. I remember the stacking at my father's place. Saw Toner and Bullevant on the sth March m Herring's bush. Saw a dray near the water race. Was called before the Grand Jury. Gorry waß working for father at the stacking. To Mr Wilding— l had the date m the time book for our men's wages. I kept it for father. I did not put down m that book that I had Boen Toner and Bullevant on that date. I did not tell Mr White about the entrj I was carting m on Maroh sth and I was also Bent after a horse. I do not know that I mentioned the horsa when I gave evidenoe m Ashbnrton. In carting grain, I should not pass ths bash. I was at the Sunday meeting when Mr White came up. Re-examined— Oorry itopped working on the Friday. Christopher Grieve, janr.— l was at Boul ton's m Maroh of last year. I went for a horse. I went with George Boulton, Petor Jephaon and John Boulton — since dead. Know the water race noar the track leading into Horring'B bush. Went over the water raoo opposite Herring's bush to catch a horsa. Saw a dray standing on the road near the traok leading into Herring's bush. Saw Toner and Bullevant m the Company's bush. They were oarrying out stuff fit for rafters or wall-plates and round rails. Know Gorry. They were stacking at Boulton's. I By Mr Wilding— First time I was spoken to about this was day before yesterday at | Alford Forest. My father spoke to me. | Charles 0. Fooks— l prepared the plans put m at the trial Toner v Herring heard on 15th June, 1886 at Timaru. The survey and plans were made June 2nd, 1886, Toner and Bullevant pointed out where they cut the riokors (indicated by witness on plan). I subsequently pointed out the place to Mr Herring and others. The boundary indioatod by survey line is not very distinct. There m a gully auns a little distance along boundary • part of the line By Mr Wilding — As an export, could detect the whole of 'he boundary line. A non-ex pert could not very well tell where the boundary line was. It was grown together a good deal. On Juno 2nd, 1886, when I visited the bush the rickers looked recontly out— within a month or two— should not think over six months. (Witness then shewed where the rickors had been out.) John Hutohison, bushmao, Alford Forest — I am m Herring's employ. Was so m Maroh 1886. Know Herring's bush. Had seen Toner and Bullevant there on the 27th. Only onoe. Met Toner coming out of Her ring's bush carrying rickere, saw him take them to the dray. Saw the dray on side of road m front of Herring's bush. The horses' heads wero on tho road and opposito the track, I went on into tho bush about three chains. I mot Toner coming out carrying riokers to the dray. I saw Bullevant furthor m the bush outting rickors. I had a conver sation with Toner. I don't think Bullevant heard. I referred him to tho peg on boundary line between Herrings bush and Pye's, more than a chain from the Iraok. The pog was clearly visible. I could see a clean line cut, any practical bushman could soe it. By Mr Wilding— Was called before tho Grand Jury. I could not tell how many rickera Toner had m tho dray. I did not count them. Thoro wore walJplatea as well. Saw them passing homewards. I was about a ohain from them. Saw wallplates an well as riokers sticking out behind the dray. Believe this was the first timo suoh timber had been Bpoken of m tha Court. Toner told me that he thought he was outting rickers m Pyo's bush, bnt to the best of my knowledge ho did not lay that Nelson had direoted thorn there. Did not tell them . not to take the riokers away. Made no objection. Thoy wont on outting after I left thorn. I did not tell thorn to stop outting. I never took any timber without Mr Herring'B consent. Never to my knowledge had any charges made by Mr Croßbie, the former manager. Never had any wire to return. I object to say if I broke the pledge. I left the Lodge. Told Mr Herring after I saw Toner add Bullevant. Don't remember if I told him about wallplates and rafters. Told Herring that there was timber missing out of the bush. Was not m Crosbie's employ. Have been off and on for Herring. Did not know on Maroh 27th that they had been there previously. (Showed position on plan where ho (Hutohinson) was cutting.) I cut two black pine posts m tho traok but nothing elsn there— about a week or ao before I saw Toner thore. • William Brown, bushman, Alford Forest— lam a Swede. Was at work m Boulton's bush. Boulton Btartod stacking about the 4th March, 1885. They were oarting 3or 4 days. Saw Toner and Bullevant pas* along m their dray. It was on the sth. Did not ■cc Nelson and Toner together. Later m the daywas m Boulton's paddook— about 8 or 9 ohains on opposite side of road to Herring's bush. It was about throo or four o'olook. I ■aw Toner and a man. Tonor had a round stick on his back. He was taking it to tho dray, corning down a cattlo or sledgo track On following Sunday went np the track and ■aw somo bush fresh out. To Mr Wilding— Am snro it was the sth Maroh that I saw Toner. MoCormiok asked me about it but can't say when. I do not know if he was getting up tho oaso. I think I told him it was the sth. I told MoOormick all I knew. Edward Herring, defondant, examined by Mr Stringer, said ho was manager of the Alford Forest Estate Company. Several state ments wsre put before him before ho began tho late actions. MoCormiok for ono told him. Belioved tho statements and submitted them to Mr White Know tho men Had rea son to believe they made fair statement!. First wrote Mr White on tho 11th July, and before tho informations were laid, submitted further statements to Mr White. All along was advised by Mr White, and during the time never learned anything to lead him to doubt the truth of any of tho statements. Had done nothing to cause the delay. Urged Mr White to proceed with tho oaso if he intended to do so. By Mr Wilding— The statements mado m my letter to tho "Pross " wore to the best of my knowlodgo true, but I intended the general reflections I mado m it to apply to tho imme diate distriot— sach a Bized district an I had been accustomed to live mat Homo. It did not apply to the Alford Forest distriot, which is 8 miles away. I did not includo Toner's, four or five miles away. For instanoe " matri monial infelicity " could not apply to Toner, he had'nt got a wifo. Hutohison told mo about tho riokers. Did not mention othoj timber. I then put tho matter m tho hands of the police. I did not, as Toner said, searoh his promises. Tho comtablo did. I fasloned our horses to a fonoo and at the roquost of the oonstable wont down to the stable. I jumped over a quagmire of urine to got to tho chaff-houso door. Tho constable asked me if I saw anything bolong ing to mo. I said no. Tho constable then arrosted Tonor, Ho said nothing to mo about it. After Bullevant had given evidence m the libel aotion, Mr Harper consulted with me. {Here witness appealed to His Honor to allow him to explain the nature of the inter view between witness and his counsel, Mr Harper. His Honor consented.) On the adjournment for lunch, Mr Harper said to mo " tho evidenoo of plaintiff and his wltnosscß hat gone against us— lt looks £100 bad. I think they will settle it for that. I don't know if thoy will aooept less, perhaps thoy may take £70 " I replied " I won't pay more than £50 and would rather fight it oat ttyiq pay that," After Mr H*?f9lf

called me to the robing room and said — • They will settle it for £100 but not less." (Mr Wilding— and oosts.) No, I said— "l would rather lose than pay a penny and publish to the world that I was a liar." The case went on and I lost. I did say to Mr Knight that my poople would spend £10,000 rather than see me beaten. They have dot paid a penny. (Letter put m, but witness said he did not think it was the " violent " letter referred to at the late trial.) I have no ill. feeling towards Toner bat I hate nd respect for him. I may have spoken of him to the people m the neighborhood as "a •uspieious character." To Mr Wilding— (hold* ing m his band witnesses statements.) I triti not swear that all the statement! worn pre pared immediately after the libel ftaMcifc Somo were signed by witnesses jaat prevloaft to tho aotion for perjury at the request ef Hi White, I pressed Mr White to g© on iritfc tho prosecution. I had no feeling m the matter of re-oponing the larceny cage. Mr White told me that he had good groandl fee a proseoution for perjury against Toner and Bullevant. Re.examinod by Mr Stringer— l left this arrest of Tonor to the constable. I added nothing to the etatomonta submitted. Mr White wrote out most of them. To Mr Wilding— l paid nothing to MoComick for furnishing me with these statements. Ho refused money for expense! is attending these trials. Arohibald McOormiok, contractor remem bered the trial Toner v Herring. Heard most of the evidence. Heard soon after the trial about the perjury. Heard people talking about it. Heard what a lot had to say •boot it. I told Mr Herring, I was told to do bo. I saw Nelsou, Hutchison, Brown, Moore, Grieve, Boulton and others. I conveyed their statements In Mr Herring as nearly as I could put the words together. Know the people. Havo been seven years m th« district. They are respectable people. To Mr Wilding — I was not paid for It. I was not called at the libel trial. People oame and told mo because I was working on ths station. Mr Herring never asked me to go round. Havo no desiro to get them (.Toner and Bullevant) oonvioted. Police Constable Bourke said — I am stationed at Methven. Mr Herring oame to me. I went to Alford Forest next morning and met Mr Horring there. Went to tha bush. (Plan produoed.) Examined bash about tho track. I Baw the plaoo whero railf and rickers had been recently out. I noticed gap marks m axo on the stumps. I saw Hutohison and Nolson and made enquiryi I aoted on my own responsibility. At the end of Toner's hut I noticed on pieces of round rails similar to stumps m bush marks of gaps m axo tho samo as I saw m bush. Herring did not go into tho chaff house, I did not see him m. Herring stayed outside aa far ai I know. By Mr Wilding— Toner and I rode on a horao. He complainod of being lame. Her* ring did not tell me he did not wish him to ba arrested. lam sure I did not see Herring m tho stable. 1 asked him if he saw anything belonging to htm. Herring said ho saipeoted Toner. I swear I did not say at the trial I had no complaints from othor settlers — nothing against Tonor except from Herring. In the rocords of tho office there were ehargea against him since 1883-1 suoh as larceny and arßon. (Mr Wilding— His house was burneA down.) Ido not know about hia honse, hie stacks wero burnt. (Mr Wilding — They were not insured.) I think they were insured. {Mr WilJiug— Will you swear his house wai .insured (?) I did not know ho had a house. Mr Wilding on resuming hii seat remarked — Well this is a miserable affair. His Honor— To which do you allude— the larceny or the perjury ? By Mr Stringer — When I made tht arrest I h*d only been a few weeks m the distriot. I co ■ c to Methvon on the 6th March 1886. I told Herring that I would come to Alford Forest and if I saw anything I would arrest him. John W. White— Timaru. Am Crown Proseoutor for this district. Saw report of libel case m Timaru paper. Was not m Court. First consulted with 'Mr Herring to warda ond of July 1886. Within the next month or two received several statements from him. Got all exoept suoh as are signed m August and September. (Witneia ex* plained that tbo cause of delay arose from pressure of work m attending to the Hall and Cane oases.) I told Mr Herring that there was a good case against Toner and Bullevant. I drew the informations for per* jury. I asked Mr Horring if he knew that the witnesses wore trustworthy. I toted for Mr Horring up to the committal. I prepared tho indictment. It wbb considered, m oon* sultation with counsel, that the minor matter* should be omitted. Tho rehearing of the larceny oase waß opposed by instructions from the Government. Mr Herring had nothing to do with it, The delay m bringing on the per* jury aotions was not Mr Herring's. By Mr Wilding — Tho Crown Pro!Booter m Chris! ohuroh refused to oonduot the case. John Moore, Station Manager, Alford Forest— Remember being told that Toner had out rickera m the bush. I Baw the place where riokers had been cut the Sunday after the trial. Was m tho company of Grieve and Itigg. Waß told whore they hai been out. Thoy had then boon cut from four to twolvo months. All tho witnesses: bear a good charaoter. Know nothing to 4he con trary. This olosod tho oase and as it was 5 o'olook tho Court adjourned. On resuming at 10.15 a.m., next day. Mr Wilding claimed the right to call rebut* ting cvidouoe stating that he coold call wit nesses to prove that Tonor was at Temuka on the 12th and 13th March. Mr Stringer remarked that he would not hold tho seoond visit as important but would stick to the visit to the bush on tho sth March. Mr Chapman, rooalled — 1 think it is im possible they could see from the stack if the dray was on tho one side or the other of wator raco. I have been recently on the stack. Could see the rail of tho bridge. By Mr Stringer— lt was not the same staok as was there last year, but one a little nearer tho road. Counsel addressed the Court at great length and His Honor shortly direoted the jury. The learned Judg'j m direoting the jury said that it was for tho proseoution, and not for the dofonoe to prove, first that the plaintiff is an innooent man, secondly that there was a want of reasonable and probable cause for the original proseoution, and lastly that the unreasonable proceedings of which ho complains wore initiated m a raalioioua spirit and not m furthoranoo of justice. Hia Honor then offered to review the whole of tho evidence if oounsel desired him to do ao. Oounsol, howover, did not deem it neoesiary. The learned Judge said that the sols point which the jury had to oonsider then wan whether the plaintiff, Bullevant, had proved to their satisfaction that he was innocent of the late oharges that had been laid agaimt him. After an absence of ton minutea the - jury returned and the foreman said, "We find that the plaintiff has failed to prove hia innocence." His Honor recorded a verdict for defondant, Herring ; allowing oostß on the middle scale, certifying for a speoial jury, second eoumel, and costs of jury for two full daya.

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