summoned for the State. This warrant was placed in the hands of a constable.

When Core swore to this affidavit, which is a positive statement, he said, that the statement in it was information and hearsay, but he believed it. No one else was present but his counsel, who was the prosecuting attorney of Ritchie county.

The constable under this warrant arrested Vinal, the plaintiff, and brought him before this justice. He, the justice, examined the case, the investigation lasting two days; and he dismissed the charge. The constable testified, that he arrested Vinal under this warrant at his house and took him to Harrisville.

Vinal, the plaintiff, testified, that he was arrested on Saturday at nine o'clock A. M. at his house near Petroleum. He told the constable, that he wanted to go to Parkersburg to employ counsel, and the constable replied, that if he would give him his word of honor, that he would return, he might go. He went and returned with his witnesses on Tuesday following May 9, when the constable took him before the justice. The examination commenced about one o'clock P. M., continued till dark was renewed the next day and continued till quarter past three, when the warrant was dismissed, and he discharged by the justice. He had lived near Petroleum for thirteen years, was before a resident of Wood county. His witnesses' fees on this examination were $56.00; his attorney's fee $25.00; and the time he lost was worth $25.00. He paid the fare and hotel-bills of his witnesses. He had been tenant of the West Virginia Oil and Oil Land Co., since April, 1872. Had theretofore had business transactions with Compton but none with Core. On the night after the close of the trial Core said to him: "I suppose you will make us pay for this, Colonel." The defendant, Compton, was the general manager at the trial. He said that he had a right to consult and direct the lawyers, as they were his lawyers. There were three lawyers aiding in the prosecution. Core and Compton, the defendants, consulted together and with these lawyers. He paid out in this matter about $150.00. On Saturday he was with the constable about an hour.

A witness, Coville, testified, that he was a witness for Vinal, the plaintiff, at that examination. The witnesses were exam

ined separately and apart. In the fall of 1876 the defendant, Core, pointed out Vinal to the witness and said: "There's a man Colonel Compton has persuaded me to persecute;" and within four months preceding the time, when the present case was tried, the defendant, Core, said to the witness at Hill's hotel in Parkersburg, that he was persuaded into this thing; that his counsel had advised him to do it as the only means to protect himself; that he was averse to it.

The counsel for the plaintiff, Vinal, at this examination made the same statements substantially as Vinal as to what took place at the examination before the justice; and he confirmed Vinal's statement, that the defendant, Compton, took an active part in the prosecution, asking some questions himself of witnesses.

This was all the plaintiff's evidence in chief. When he announced, that he was through his evidence, the defendants moved the court to exclude all the plaintiff's evidence from the jury, on the ground that it showed no cause of action against the defendants or either of them. The court overruled this motion; and the defendants excepted to this action of the

court.

The defendants then introduced their evidence, and the plaintiff his rebutting evidence, all of which with the plaintiff's evidence in chief is set forth in the other two exceptions taken by the defendants. This evidence is unsatisfactory and indefinite in some respects and is contradictory in others. It appears from it, that the plaintiff, Vinal, was a tenant of the West Virginia Oil and Oil Land Company, who owned oillands in this State worth between $200,000.00 and $300,000.00. The defendant, Compton, who lived in Michigan, was the president of this company and owned more than half the stock of the company, and was a wealthy man. Vinal had leased certain of the lands of this company in Ritchie county, in which several oil-wells had been sunk; he had been working them for several years prior to 1875. By his contract with or lease from this company Vinal like other tenants of the company was to pay one third of the oil produced by him to the company. This oil was to be delivered as rent or royalty from time to time, whenever the company chose to demand it; till delivered all the oil remained in the possession of Vinal or

the tenant, whoever he might be; and Vinal or the tenant, whoever he might be, had no right under the contracts to remove any of the oil without giving the company notice. The company of course had no right to remove any oil without the consent of Vinal.

Some of the witnesses say, that while the oil remained in the tank where first pumped, and before it was divided, the tenant, whoever he might be, or Vinal, was a tenant in common with the company, Vinal or the tenant owning two undivided thirds and the company one undivided third. As the oil until divided was in the possession of the tenant or of Vinal, it is immaterial, so far as the rights of parties in the present suit are concerned, whether all the oil before its division belonged to the tenant or Vinal with a mere obligation on him to deliver up one third on demand, or whether the tenant or Vinal was a tenant in common with the company, the possession of their common property being with the tenant or Vinal till the division. The exact nature of this possession could only be shown by the production of the contract between them or the lease, and this, though doubtless accessible to both, was not produced in evidence before the jury.

This tenancy of Vinal had lasted several years, when on January 20, 1875, this company by its agents, of whom the defendant, Compton, was one, made a written contract with one Backus, which among other things transferred to him the royalty-oil which was due or might become due from certain tenants of the company in Ritchie county including the plaintiff, Vinal, from January 1, 1875, for the term of three years thereafter. On the 1st of May, 1875, Backus made an assignment of an undivided three fourths part of the entire property so leased by him including three fourths of this royalty of the plaintiff, Vinal, for a certain period to Hoffmire & Co. This assignment was not produced in evidence before the jury, though the record would indicate, that it was in the power of either of the parties to this suit to produce it, had they chosen so to do. There is from the loose testimony given in this case, as we will presently see, much ditficulty in determining certainly from what time and to what

time this three-fourths of royalty of Vinal and other property was by this assignment transferred to Hoffmire & Co.

On August 17, 1875, the said Backus assigned to Silliman the remaining one fourth in said lease and contract by said company to Backus, including the one fourth of the royalty of the plaintiff, Vinal, to take effect from the 1st day of May, 1875, and to continue in force till the 1st day of May, 1876.

A general notice of these transfers was given by Backus to Vinal on December 17, 1875; and on December 23 he gave him a more specific notice thereof. In this last notice he says: "By my assignment to Hoffmire & Co. I transferred the right to three fourths of your royalty to them for and during the first year of my lease from the West Virginia Oil and Oil Land Company and no longer, and such first year terminates January 1, 1876." But four months before this notice was given to Vinal, the plaintiff, on the 16th day of August, 1875, the West Virginia Oil and Oil Land Company in the absence of Vinal and without his consent had taken from his oil-tank one hundred and twenty-nine barrels and twenty-seven gallons of oil as the royalty due them from October 22, 1874, to May 1, 1875. The party who for this company so took this oil from this tank says: "It was taken as royalty due to May 1, 1875, so as to draw commencement of Hoffmire & Co.'s time." pears, in some way authorized this company royalty he was entitled to under his contracts with the company, which was not assigned to Silliman or to Hoffmire & Co.

the hire to the

Backus, it apto take all the

It would seem from this, that at that time, August 16, 1875, when this one hundred and twenty-nine barrels and twenty-seven gallons was so taken from the plaintiff's, Vinal's, tank as royalty, to which the West Virginia Oil and Oil Land Company was entitled, it was considered, that the interest of Hoffmire & Co. in this royalty did not commence till May 1, 1875, the date of his contract, though from the notice given to Vinal December 25, 1875, it would seem, that Hoffmire & Co.'s interest amounting to three fourths of the royalty commenced on January 1, 1875. If this were really so, the West Virginia Oil and Oil Land Company took on the 16th of August all the

royalty, which arose from Vinal's wells from January 1, 1875, to May 1, 1875, including forty-seven barrels, which on this supposition did not belong to them, but belonged to Hoffmire & Co. This oil, it is admitted, was taken in the absence of Vinal and without his consent; but the party, who took it, says, it was taken with the knowledge and consent of Hoffmire & Co. and Backus, who told him to pump it to the West Virginia Oil and Oil Land Company. It is admitted by Backus, that he gave such direction, but he says, he did not hear Hoffmire & Co. give such direction. They did not testify in the case, but their subsequent conduct is inconsistent with their having turned over their royalty between January 1, 1875, and May 1, 1875, these forty-seven barrels of oil, to the West Virginia Oil and Oil Land Company; for on the 11th day of March, 1876, they executed to the plaintiff, Vinal, a receipt, which he produced at the trial, which was for $350.00 in full for royalty and expressly reciting, that "the royalty settled for in this receipt being three fourths of the royalty, which became due from said Vinal from the 1st day of January, 1875, to the 1st day of January, 1876." The receipt also of Silliman for $175.00 in full for his royalty from May 1, 1875, to May 1, 1876, was also produced. It was dated April 17, 1876.

Before the giving of this receipt by Hoffmire & Co. they, Backus, Compton, the defendant, and the West Virginia Oil and Oil Land Company acting by its president, the defendant Compton, personally had on February 11, 1876, entered into a contract and compromise, which recited that Hoffmire & Co. had pending in Ritchie county two suits against the other parties, and that the West Virginia Oil and Oil Land Company also had two suits pending in said county against the other parties, all of which it was proposed to settle. These four suits were then agreed to be dismissed and Hoffmire & Co. agreed to surrender to the West Virginia Oil and Oil Land Company possession of three fourths of the property as described in this lease or contract with Backus of date January 20, 1875, from the 1st day of January, 1876. This of course operated as a surrender of any claim of royalty against the plaintiff, Vinal, after January 1, 1876, if in point of fact Hoffmire & Co. ever had such claim under their assignment from