the objection. Hence we will consider the whole in our treatment of the question presented.

It is apparent that there was a controversy between Stamper and Raymond as to who was entitled to possession of the wheat at the time Raymond attempted to remove it from the field. It had been produced upon the premises which constituted the subject of the contract, and the relative rights of the respective parties thereto were matters which they attempted to fix and define through stipulations and conditions inserted for the purpose; and hence such rights were made dependent upon the contract, and being so the contract was pertinent to the inquiry, and was properly admitted. Such was the course pursued in the case of Vinal v. Core, 18 W. Va. 1, 45, where the controversy was over the right to the possession of certain oil which had been produced under a lease. The terms of the lease, although it was not produced, were considered as relevant to the issue. So, also, was an assignment of the landlord's interest in the product introduced and considered, although it was held not to have included the particular oil which formed the basis of the controversy. The case involves, also, a construction of those features of the contract which pertain to the controversy and which led to the encounter. This is a matter of law for the court, and when construed the jury should find under the evidence what conditions have been observed, and what not, and which of the parties is in fault, and determine their verdict accordingly. The contract is for the sale of the premiss described therein, by which possession is given to the vendee, and which he may maintain as long as he complies with the conditions prescribed. This gave him a potential ownership, and the crops produced thereon became and were his from the time of their germination to their severance from the soil and delivery to Raymond, or until such default on his part as entitled Raymond to take them. There was no attempt by Raymond to reserve ownership therein until ful

fillment of any condition, while, on the other hand, it was expressly stipulated that Stamper shall not sell, convey, assign, or mortgage any of said crops, from which the intendment is manifest that the ownership thereof was to rest with Stamper. There is a stipulation, however, that Stamper shall deliver to Raymond, at Waterman Station, all wheat produced each year as soon as threshed; reserving only to himself a sufficient amount for seed for said premises, feed for his stock, and a reasonable amount for household and necessary family expenses. It is further stipulated that Stamper shall harvest the wheat at his own expense as nearly a possible, and that any deficiency for necessary harvesting expenses shall be paid out of grain raised on the premises.

The phrase "as soon as threshed," indicating the time of delivery, is obvious and plain, and it should be made as soon thereafter as reasonable dispatch will warrant, considering the usual means and appliances at Stamper's command with which to accomplish the purpose. He could not postpone it until he had done some other act not contemplated by the contract, and the agreement to harvest as nearly as possible at his own expense does not afford authority for attending to other business first, with a view of earning means with which to defray such expense, and therefore cannot be considered as modifying or in any way qualifying the stipulation touching the time of delivery. Stamper was entitled to retain wheat and other grain sufficient for seed the following year, feed for his stock, and a reasonable amount for household and necessary family expenses, and to this should be added sufficient to cover any deficiency in necessary harvesting expenses. All the residue he should deliver to Raymond. Now, if Stamper did not make the delivery of the wheat under the contract which Raymond was entitled to at the time specified (and these are questions for the jury), then Raymond was authorized to go at once upon the premises, without notice, and take such wheat as he was entitled to,

and haul it to the station, at the expense of Stamper; but in doing so he was not warranted in committing a breach of the peace. If he met with resistance from Stamper, it was his duty to desist and obtain his grain through legal or peaceful methods. If Stamper was in the right, and not in default, he was entitled to use just such force as was necessary to prevent the taking of his wheat; but, unless assaulted so that it became necessary to defend his person from violence, he had no legal authority or right to assault Raymond with a dangerous weapon. The act of Raymond in attempting to take the grain was not in the commission of a felony. There was a dispute between the parties touching the right to possession, and, in the endeavor to obtain or hold it, each, as he contends, was attempting to pursue the course which he supposed was proper in the premises, and which the conditions of the contract authorized; and it lacks the ingredient of intent, which is essential to the commission of a felony. If Stamper was in the wrong in his contention touching the delivery, then he was the aggressor from the beginning, as he was interfering with Raymond's lawful right to take possession of the wheat. In support of these views, see State v. Tarter, 26 Or. 38 (37 Pac. 53); People v. Payne, 8 Cal. 341; State v. Forsythe, 89 Mo. 667 (1 S. W. 834). All these are matters for consideration in determining whether the defendants were prompted by malice in instituting the criminal proceeding before the committing magistrate, and whether they, acting conscientiously, impartially, reasonably, and without prejudice upon the facts within their knowledge, and as prudent and reasonable men, had cause, or, in other words, had probable cause, for so doing.

5. The question, "Did they leave on your premises any wheat for your own use?" propounded to Stamper, and noted in assignment of error No. 2, was pertinent and relevant, as showing the purpose of Raymond in removing the wheat

from the field,-whether to take the share belonging to him, or to exceed it and thereby oppress Stamper.

6. Assignment No. 3 involves the competency and relevancy of the question put to Stamper on his examination in chief for the purpose of substantiating his cause, as follows: "Had Mr. Raymond been annoying you and harassing you about these premises and crops prior to the time of that arrest?" The object of the inquiry, no doubt, was to show malice on the part of Raymond in causing the arrest of Stamper for the alleged assault, which difficulty was brought on by a dispute over the right to the possession of the wheat crop of 1899. That was the immediate cause of the controversy, but the question was intended to cover a much wider range, and the witness so understood it, as his answers indicate. He went back to the inception of the contract, and related a circumstance of his buying some seed and feed of Raymond under a verbal contract touching the premises. This ran on without final settlement until the harvest season of 1898, when he was induced to give his note to Raymond for the amount-some $234. The note was very shortly assigned to Rogers, who attached Stamper's growing grain; and thereupon Raymond instituted a suit against Stamper to annul the contract of sale of the premises, in pursuance of which a receiver was appointed. The note was settled in a short time, the attachment discharged, and the suit for a receivership dismissed. There was an attempt between the parties just prior to the attachment and suit to agree upon a settlement, having in view an annulment of the contract, but the result was not accomplished. The question is one not without its difficulties, in determining whether or not the testimony should have been allowed to go to the jury. These negotiations and transactions may have had some tendency to show malice on the part of Raymond against Stamper, but they involved a further inquiry as to who was in the right during their pendency, as, if Raymond

was in the right, malice could not be imputed to him from the mere instituting of the civil proceedings alluded to. Thus was engendered, very naturally, a collateral inquiry into the motives of the respective parties touching their acts and demeanor towards each other, which culminated with the at tachment and suit for a receivership. The transactions were entirely distinct, as respects time and circumstances, from the one which has culminated in the present action. In the endeavor to show malice in cases of this nature, large latitude is usually indulged; but it is necessary that the inquiry should have some perceptible relation to the controversy which led directly to the alleged malicious prosecution—some connected bearing-so that it can be said that the malice which induced the one, or was manifested thereby, has been harbored for a new opportunity to arise, whereby he may again give rein to such impulse, prompted by a perpetuation of the same motive, and that the present was the opportunity for which he had been seeking. It does not seem to us that such an inference is reasonably deducible from the premises. The transaction of 1898 appears to have been closed by the discharge of the attachment and a dismissal of the suit for a receivership, and had remained closed, for aught that appears, for nearly a whole year, and until another crop had been produced, to which the new conditions wholly related. Under such circumstances, we are of the opinion that the transactions of 1898 and prior thereto were too remote and disconnected to be relevant for the purpose of showing malice in the transactions concerning the crop of 1899, and should not have been allowed, for that reason, to go to the jury.

The fifth and sixth assignments go to the inquiry respecting the value of the wheat and barley produced. If confined to the crop of 1899, the questions were pertinent.

Assignments 8 to 15 and 17 to 19, inclusive, involve various inquiries touching the expenses of harvest in 1899, the amount of seed wheat that would be required for the follow