Page:The History of the Standard Oil Company Vol 2.djvu/138

 had a talk with Mr. Rogers, and that his conversation has already been discussed and related in your hearing. The query in my mind was as to whether or not the inference could not be drawn, from this conversation, that Rogers did know of the bringing of these actions, acquiesced in their being brought, and in that way became a party to them; but, even conceding that the actions were brought with his knowledge and consent, I am inclined still to think that the evidence is hardly sufficient to warrant his conviction, for the reason that it does not appear that the actions were brought without probable cause; in other words, the bringing of an action and being defeated in the action is not of itself sufficient to authorise a jury to say that it was a false action. That standing alone is not sufficient to authorise a jury to say that it is a false action, but there must be shown in addition to that that there was a want of probable cause; in other words, that the party bringing the action knew and understood beforehand that he had no good cause of action… I am inclined to the opinion that the evidence would not warrant his conviction upon that ground."

The acquittal of the three Standard gentlemen was followed by an application for the acquittal of the Everests, but the case with them was different. It had been proved conclusively that they threatened at the start to ruin the new concern, and that they had counselled Miller "to arrange the machinery so it would bust up or smash up"; there was a strong presumption that Miller, acting on this advice, had arranged for the explosion of June 15, though, as he claimed, he meant only to "give them a scare." The judge denied the application in their case, therefore, and the trial went on. The whole force of the defence was now thrown to proving that Matthews had gone into the Buffalo Lubricating Company merely to sell out. His offer to Mr. Brewster in 1882, his talk of making the Standard settle, were rehearsed. Two witnesses were pro-