The circuit courts of the United States have no power to grant a
peremptory nonsuit against the will of the plaintiff
And where there are several defendants against whom the charge
is joint and several, there cannot be, at common law, a nonsuit as
to one and verdict against the others, although the verdict may be
against one and in favor of the others.
And besides, in this case there was evidence for the jury to say
whether the party in whose favor the nonsuit was prayed was guilty
or not.
Where several defendants are joined in an action of trespass, a
verdict of acquittal against one, in order to make him a witness,
can only be demanded where there is no evidence against him. The
cases upon this point examined.
Where the cause of action against the defendants was that they
had fraudulently sold the goods of the plaintiff, evidence was
admissible that they had committed similar fraudulent acts at or
about the same time, with a view to
Page 64 U. S. 173
establish the intent of the defendants with respect to the
matters charged in the declaration.
The cases upon this point examined.
So also evidence was admissible to show that the purchaser was
largely in debt and insolvent, and that the defendants represented
him to be in good credit. The force and effect of such
circumstantial evidence is for the jury to judge of the intent.
If the goods were fraudulently sold by one of the firm, and the
firm received the profits in the shape of commissions, all the
partners are responsible for the sale.
In the present case, the instructions given by the court below
cannot justly be complained of by the counsel, and moreover were
accompanied by explanations which constitute a part of them.
The plaintiffs in error were auctioneers and commission
merchants in Chicago, Illinois, the firm being composed of Joseph
Filkins, J. P. Phillips, Elihu Granger, and Edward H. Castle. An
action on the case was brought against them by Bullard, a citizen
of the State of New York. The declaration contained five counts,
viz.:
1. That these four defendants were partners, doing business in
Chicago, as auctioneers and commission merchants, under the firm
and name of Filkins, Phillips & Co., and
2. That certain goods of plaintiff were in the custody of
defendants, as such partners, for sale on commission.
3. That, as such partners, defendants sold them to Edmund S.
Castle.
4. That E. S. Castle, at the time of the purchase, was
insolvent, and not fit to be trusted.
5. That defendants knew at the time that E. S. Castle was
insolvent, and effected the sale fraudulently.
The plea of not guilty denied each of these allegations.
The verdict was for the plaintiff in the sum of $2,983.32 and
costs.
The bill of exceptions taken upon the trial occupied sixty pages
of the printed record, and recited substantially the evidence given
to the jury.
In the course of the trial, the following proceedings took
place:
Page 64 U. S. 174
After the evidence for the plaintiff had closed and he had
rested his case, there appeared to be no evidence connecting
Granger with the transaction other than what might exist from the
fact of his being one of the partners.
And thereupon defendant, Elihu Granger, moved the court as
follows:
The defendant Elihu Granger moved the court to direct the jury
to render a verdict of nonsuit, or that the court would order a
nonsuit to be entered as to defendant Granger upon the ground that
the evidence given to the jury by plaintiff did not tend to charge
this defendant. This motion the court overruled, and said defendant
Granger then and there excepted to the decision of the court. And
thereupon all the defendants moved the court for a nonsuit as to
Granger upon the ground that the evidence in the case did not tend
to charge him. This motion was overruled by the court, to which
decision of the court said defendants, and each of them, then and
there excepted, and thereupon said defendants asked the court that
said jury might be permitted to retire and consider whether they
found the evidence in the case sufficient to charge said defendant,
Granger, and if not that the jury might find said Granger not
guilty. And the defendants, Castle, Filkins, and Phillips, each
urged upon the court, as a reason for this course, that they
desired to use said Granger as a witness for their defense if he
should be acquitted; but the court overruled this application and
motion, to which decision the defendants excepted. Other exceptions
were taken as to matters of evidence which need not be here
recited.
After the evidence was finished, the court gave the following
instructions to the jury, which are inserted in order to show the
view of the court below, although the defendants excepted only to
the two first:
The court, after saying to the jury that the original and
amended declaration alleged in substance that the defendants
fraudulently sold the goods for plaintiff to an irresponsible
person and also that, in consequence of false and fraudulent
representations made by them, the plaintiff consented to the
negotiation and sale by them of the goods to an insolvent
person,
Page 64 U. S. 175
by which plaintiff sustained loss, and that one of these
allegations must be proved, among various other instructions, gave
the following to the jury:
"1. If the goods were in the custody of the defendants for sale
on commission and one or more of the partners made false and
fraudulent representations as to the party to whom they were to be
sold by the defendants, then the partnership would be liable if in
consequence of such representations the plaintiff consented to the
sale to that party and the sale was actually made by the firm to
the party."
"2. If, however, these goods were not in the possession of the
defendants for sale, but were there merely for safekeeping, and one
or more of the partners made false and fraudulent representations
as to the solvency of a person to whom it was proposed to sell the
goods, and in consequence of such representations the goods were
sold and delivered to that person by the plaintiff or he consented
to their sale, then the firm is not liable for such false and
fraudulent representations unless the firm, as a firm, were party
to such representations. That the false or fraudulent
representations made by one of several partners, in order to bind
the firm, must be made in the course of and in relation to the
business of the firm."
"3. If the sale was made by the plaintiff alone, or by the
plaintiff through E. H. Castle as his agent, acting in that behalf,
and not for the firm, then no matter what were the representations
by E. H. Castle, the jury must find for the defendants."
"4. Unless the sale was made or negotiated by the firm, the jury
should find for the defendants."
"5. That the fact of a guaranty of the payment of a debt by
Filkins is not evidence of fraud nor of want of solvency at that
time. There is no presumption that the return of the officer is
untrue."
"6. That so far as the motives of the defendants are concerned,
no fact proved is to be considered unless the knowledge of such
fact is brought home to such defendants."
"7. That all the subsequent transactions mentioned by the
witnesses have nothing to do with the main fact of the case
Page 64 U. S. 176
further than this: they are only circumstances to be considered,
which may throw light upon the motives of the parties; that if the
subsequent acts and declarations can be accounted for reasonably
without assuming a fraudulent motive in the transaction of the 8th
November, such circumstances are not to be considered or regarded
by the jury as entitled to any weight. And they are to have no
influence until the jury are satisfied from the evidence that the
sale was made by or through the defendants, as commission
merchants; that E. S. Castle was not responsible as a purchaser, on
the 8th of November, the time of sale, and that the defendants knew
him to be irresponsible."
"8. That unless the jury believe that defendants acted
fraudulently, as charged in this declaration, it is entirely
immaterial whether they, or any of them, acted fraudulently or
otherwise in after transactions, or other transactions."
"9. That fraud could never be presumed, but must be clearly
proved, but it may be established circumstantially as well as by
direct proof."
To the first and second instructions as above stated the
defendants then and there excepted, but to none others, the other
instructions above set forth being given to the jury at the request
of the counsel for the defendants.
The court also said to the jury, that all the instructions given
by the court were to be taken and considered together.
Page 64 U. S. 180
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Edward F. Bullard, a citizen of the State of New York,
complained in the court below of Joseph Filkins, J. P. Phillips,
Elihu Granger, and Edward H. Castle, in a plea of trespass on the
case, alleging at the same time that they were partners, doing
business as commission merchants at Chicago in the State of
Illinois under the style and firm of Filkins, Phillips &
Company.
According to the transcript, the declaration was filed on the
seventh day of July, 1856. As amended, it contained five counts
setting forth in various forms two distinct grounds of complaint
against the defendants, which may be briefly stated as follows:
In the first place, it is alleged that the defendants, on the
eighth day of November, 1855, fraudulently sold on credit, at
Chicago, to one Edward S. Castle, certain goods belonging to the
plaintiff, and which he had previously entrusted to them, as
commission merchants, for sale, and that the purchaser, at the time
of the sale, was in failing circumstances and irresponsible,
charging in the same connection that the defendants, at the time of
the transaction, well knew that the purchaser was insolvent and
wholly unfit to be trusted, and that they negotiated the sale with
intent to deceive and defraud the plaintiff, whereby he suffered
loss to an amount equal to the value of the goods so sold and
delivered.
He also alleged in other counts that the defendants, prior to
the sale of the goods and at the time when it was made, represented
to him that the said Edward H. Castle was worth at least eight
thousand dollars above all his liabilities; that he was not
embarrassed in his business affairs or much indebted, and that he
was a safe, cautious businessman and every way worthy of credit.
Those representations, the plaintiff alleged, were false, and that
the defendants well knew they were so at the time of the
negotiation, and when the goods were delivered, and that they were
so made by the defendants with intent to deceive and defraud him in
the premises, and
Page 64 U. S. 181
had the effect to induce him to consent to the sale, and to
deliver the goods, whereby he suffered loss, as is alleged in the
other counts.
To those charges, as more formally set forth in the several
counts of the declaration, the defendants jointly pleaded that they
were not guilty, and on the third day of January, 1857, the parties
went to trial on that issue.
Testimony was introduced by the plaintiff in the opening showing
that Filkins, Phillips & Company were commission merchants at
the time of this transaction, doing business at Chicago, in the
State of Illinois, and that they received the goods in question a
short time prior to the sale from one William H. Adams, of that
city, to whom the goods had previously been sent by the plaintiff
to be sold on commission. He also proved the sale of the goods by
one of the firm of Filkins, Phillips & Company to Edward H.
Castle, on credit, substantially as alleged in the declaration, and
that two of the partners and the clerk of the firm were present at
the time the sale took place.
Facts and circumstances were also adduced by the plaintiff
tending strongly to show that the purchaser was largely indebted
and in failing circumstances at the time of the negotiation and
that two or more of the members of the firm must have known that he
was insolvent and utterly unworthy of credit.
Five percent was charged as commissions on the sale of the
goods, amounting to the sum of one hundred and thirty-five dollars,
and the plaintiff introduced testimony tending to show that the
purchaser, as a part of the transaction, gave his promissory note
to the firm, payable in forty-five days, to secure that amount.
Evidence was also introduced by the plaintiff showing that
representations as to the business circumstances and pecuniary
responsibility of the purchaser were made to him at the time of the
sale by one or more of the defendants substantially in the manner
as alleged in the declaration. And it was clearly shown that two or
more of the firm well knew that those representations were false
and that the subject of them was wholly unfit to be trusted for
that amount.
Page 64 U. S. 182
Proof was also introduced by the plaintiff, showing that the
purchaser was a relative of one of the firm, and that he had
repeatedly been assisted by others in obtaining credit. And many of
the circumstances were of a character to afford a ground of
presumption that all of the defendants must have known the true
state of his affairs, and that he was insolvent.
When the plaintiff rested his case in the opening, the counsel
of the defendants moved the court to order a nonsuit as to the
defendant Granger upon the ground that the evidence offered by the
plaintiff did not tend to charge him with a participation in the
fraud alleged in the declaration. At that stage of the cause, there
was no evidence immediately connecting him with the transaction
except what might properly arise from the fact of his being one of
the partners. But the court overruled the motion for a nonsuit, and
the defendants excepted.
They then requested the court that the jury might be permitted
to retire and consider whether the evidence introduced was
sufficient to charge this defendant, and if not that the jury might
be directed to find him not guilty, urging as a reason for the
motion that they desired to examine him as a witness for the other
defendants; but the court overruled the application, and the
defendants excepted.
After these motions were overruled, evidence was introduced by
the defendants and further evidence was given by the plaintiff, all
of which was submitted to the jury, who returned their verdict in
favor of the plaintiff.
Numerous exceptions were taken by the defendants in the progress
of this trial to the rulings of the court in admitting and
rejecting evidence, and they also excepted to two of the
instructions given by the court to the jury.
1. As the facts have been found by the jury, the questions to be
determined are those that arise upon the exceptions. Of these, the
first in the order of the argument at the bar is the one founded
upon the refusal of the court to order a nonsuit as to the
defendant Granger, as requested by the counsel at the close of the
plaintiff's testimony.
Several answers may be given to this complaint, each of
Page 64 U. S. 183
which is sufficient to show that the exception cannot be
sustained. In the first place, circuit courts have no power to
grant a peremptory nonsuit against the will of the plaintiff. It
was expressly so held by this Court in
Elmore
v. Grymes, 1 Pet. 471, and the same rule was also
affirmed in
De Wolf v.
Rabaud, 1 Pet. 497. In the case last named, the
defendants at the trial, after the evidence for the plaintiff was
closed, moved the court for a nonsuit, which was denied, and the
defendant excepted, and sued out a writ of error; but this Court
held that the refusal to grant the motion constituted no ground for
the reversal of the judgment, remarking at the same time that a
nonsuit cannot be ordered in any case without the consent and
acquiescence of the plaintiff.
Repeated decisions have been made to the same effect, and as
long ago as 1832 it was declared, as the opinion of this Court in
Crane v. Lessees of
Morris, 6 Pet. 609, that this point was no longer
open for controversy.
See also Silsby v.
Foote, 14 How. 222.
Another answer to this complaint arises from the fact that the
motion for nonsuit is inappropriate in a case like the present,
where there are other defendants to whom it cannot be applied. In
actions of this description, where there is more than one
defendant, the charge, beyond question, as a general rule, is joint
and several, and consequently one may be found guilty and another
not guilty; but at common law there cannot regularly be a nonsuit
as to one and a verdict as to others, and for that reason, whenever
it appears that there is evidence in the case to charge one or more
of the defendants, a nonsuit is never granted at common law, even
in jurisdictions where the authority to grant the motion in a
proper case is acknowledged to exist.
Revett v. Brown, 2
M. & P. 18; Collier on Part., Am. ed. 1848, sec. 809, 698.
But a more decisive answer to this ground of complaint arises
from the fact that there was evidence in the case tending to charge
this defendant which rendered it proper that the question of his
guilt or innocence should be submitted to the jury. He was a member
of the firm of Filkins, Phillips & Company, as appears by the
bill of exceptions. All of the
Page 64 U. S. 184
goods in question were deposited in their warehouse, and the
jury have found that the goods were sold by the firm. Two of the
partners and the clerk of the firm were present at the sale, and
the commissions earned in transacting the business went to the
benefit of all the partners of which the firm was composed.
In view of all the circumstances as disclosed in the evidence,
it would be impossible to say as matter of law that it was error in
the court to overrule the motion, even if the authority to grant in
were conceded.
2. We come now to examine the second exception, which arises out
of the refusal of the court to permit the jury to retire at the
close of the plaintiff's case, and consider whether the evidence
offered in the opening was sufficient to charge this defendant with
a participation in the alleged fraud.
Upon this subject, the general rule is that if a defendant who
is a material witness for the other defendants has been improperly
joined in the suit, for the purpose of excluding his testimony, the
jury will be directed to find a separate verdict in his favor, in
which case, the cause being at an end with respect to him, he may
be admitted as a witness for the other defendants. This course,
however, can be allowed only where there is no evidence whatever
against him, for the reason that then only does it appear that he
was improperly joined in the suit, through the artifice and fraud
of the plaintiff. If there be any evidence against him, then he is
not entitled to a separate verdict, because under such
circumstances it does not appear that he was improperly joined, and
his guilt or innocence must wait the general verdict of the jury,
who are the sole judges of the fact. 1 Greenl.Ev. sec. 358;
Brown v. Howard, 14 John. 122.
Courts of justice are not quite agreed as to what stage of the
trial the party thus improperly joined in the suit may insist upon
a verdict in his favor -- whether at the close of the evidence
offered by the plaintiff in the opening, or whether he must wait
until the case is closed for the defendants. Mr. Greenleaf regards
it as the settled practice that if, at the close of the plaintiff's
case, there is one defendant against whom no
Page 64 U. S. 185
evidence is given, he is entitled instantly to be acquitted, and
it must be admitted that the decision of the court in
Childs v.
Chamberlain, 6 C. & P. 213, favors that view of the law.
But Lord Denman held in
Sowell v. Champion, 6 Ad. &
Ellis 415, that the application to a judge in the course of a cause
to direct a verdict for one or more defendants in trespass is
addressed to his discretion, and that the discretion was to be
regulated not merely by the fact that at the close of the
plaintiff's case, no evidence appears to affect them, but by the
probabilities whether any such will arise before the whole evidence
in the cause closes. There is, says the learned judge, so palpable
a failure of justice where the evidence for the defense discloses a
case against a defendant already prematurely acquitted that such
acquittal ought never to take place until there is the strongest
reason to believe that such a consequence cannot follow.
Some courts hold that the application in all cases is addressed
to the discretion of the court.
Brotherton v. Livingston,
3 Watts 334; 1 Holt. 275. Other courts have held that where there
is no evidence to affect a particular defendant in actions
ex
delicto against several, a separate verdict is demandable as a
matter of right, and that a refusal to grant the application is the
proper subject of exceptions.
Van Dusen v. Van Slyck, 15
Johns. 223;
Bates v. Conklin, 10 Wen. 389.
Whatever diversities of decision there may be upon this point,
all agree that the application ought not to be granted unless it
appear that there is no evidence to affect the party in whose favor
it is made.
Brown v. Howard, 14 John. 122. Now it has
already appeared that there was evidence in this case affecting
this defendant, and upon that ground we hold that the circuit court
was fully warranted in refusing to grant the application.
3. After a careful consideration of the several exceptions to
the rulings of the court in admitting and rejecting evidence, we
are of the opinion that none of them can be sustained. Considering
the great number of the exceptions, their separate examination at
this time will not be attempted, as it would
Page 64 U. S. 186
extend this investigation beyond reasonable limits. One class of
them arises out of objections to the admissibility of evidence
offered by the plaintiff tending to show that the defendants, or
some of them, had aided the purchaser in this case in committing
similar acts of fraud in the purchase of other goods about the same
time from other persons. According to the evidence, some of those
purchases were prior and others subsequent to the period of the
sale of the goods in this case. All of this class of exceptions may
well be considered together, as they involve the same general
principles in the law of evidence. Decided cases have established
the doctrine that cases of fraud, like the present are among the
well recognized exceptions to the general rule that other wrongful
acts of the defendant, are not admissible in evidence on the trial
of the particular charge immediately involved in the issue. Similar
fraudulent acts are admissible in cases of this description if
committed at or about the same time and when the same motive may
reasonably be supposed to exist, with a view to establish the
intent of the defendant in respect to the matters charged against
him in the declaration. Assuming the proposition as stated to be
correct, of which there can be no doubt, it necessarily follows
that no one of this class of the exceptions is well taken. Some of
the decided cases go farther and hold that such evidence is
admissible as affording a ground of presumption to prove the main
charge, but whether so or not, it is clearly competent, as tending
to show the intent of the actor in respect to the matters
immediately involved in the issue on trial.
Cary v.
Hoatling, 1 Hill 316;
Irving v. Motly, 7 Bing. 543;
Rowley v. Bigelow, 12 Pick. 307. Another class of the
exceptions arises out of objections made by the defendants to the
admissibility of evidence introduced by the plaintiff, which, it is
insisted, was irrelevant and immaterial. Some twelve exceptions are
embraced in this class, and they are addressed to a large portion
of the testimony introduced by the plaintiff.
In the course of the trial, the plaintiff offered evidence
tending to show the pecuniary circumstances of the purchaser of
these goods, his acts and conduct in respect to the goods
Page 64 U. S. 187
after the purchase, and that he was largely in debt and
insolvent.
He also introduced evidence tending to show that two or more of
the defendants had represented to other persons about the same
time, that the purchaser of the goods in question was in good
standing, and that they had likewise assisted him in obtaining
credit with other dealers in merchandise.
To all or nearly all of this evidence, as more fully detailed in
the transcript, the defendants objected, and those objections
constitute the foundation of the several exceptions included in
this class. Much of the evidence was of a circumstantial character,
and it is not going too far to say that some of the circumstances
adduced, if taken separately, might well have been excluded.
Actions of this description, however, where fraud is of the essence
of the charge, necessarily give rise to a wide range of
investigation for the reason that the intent of the defendant is
more or less involved in the issue. Experience shows that positive
proof of fraudulent acts is not generally to be expected, and for
that reason, among others, the law allows a resort to circumstances
as the means of ascertaining the truth. Great latitude, says Mr.
Starkie, is justly allowed by the law to the reception of indirect
or circumstantial evidence, the aid of which is constantly required
not merely for the purpose of remedying the want of direct
evidence, but of supplying an invaluable protection against
imposition. 1 Stark.Ev. 58.
Whenever the necessity arises for a resort to circumstantial
evidence, either from the nature of the inquiry or the failure of
direct proof, objections to testimony on the ground of irrelevancy
are not favored, for the reason that the force and effect of
circumstantial facts usually and almost necessarily depend upon
their connection with each other. Circumstances altogether
inconclusive, if separately considered, may, by their number and
joint operation, especially when corroborated by moral
coincidences, be sufficient to constitute conclusive proof.
Applying these principles to the several exceptions under
consideration and it is clear that no one of them can be
sustained.
Page 64 U. S. 188
Other exceptions to the rulings of court were taken during the
progress of the trial, but it is so obvious that they are without
merit that we think it unnecessary to give them a separate
examination at the present time, and they are accordingly
overruled.
At the argument it was supposed by the counsel of the original
defendants that the circuit judge had allowed the plaintiff to
introduce parol proof of the contents of a writ of attachment,
referred to by one of the witnesses; but, on examination of the
transcript, we find that no such evidence was admitted.
4. Exceptions were also taken to certain portions of the charge
of the court. On this branch of the case, most reliance was placed
upon certain objections to the first instruction given to the jury,
which is as follows:
"If the goods were in the custody of the defendants for sale on
commission and one or more of the partners made false and
fraudulent representations as to the party to whom they were to be
sold by the defendants, then the partnership would be liable if, in
consequence of such representations, the plaintiff consented to the
sale to that party and the sale was actually made by the firm to
the party."
Some criticisms were also made in the printed argument for the
defendants upon the second instruction, which, like the former, was
duly excepted to; but inasmuch as it is not essentially different
in principle from the other, and as the questions presented in each
depend upon the same general considerations, it will not be
reproduced.
Both instructions were framed upon the theory that the
defendants were not liable unless the jury found from the evidence
that the goods were actually sold by the firm, which, to say the
least of it, was a theory sufficiently favorable to the defendants.
Judge Story says, in his valuable work on partnerships, that torts
may arise in the course of the business of the partnership, for
which all the members of the firm will be liable although the act
may not in fact have been assented to by all the partners. Thus,
for example, if one of the partners should commit a fraud in the
course of the partnership business, all
Page 64 U. S. 189
the partners may be liable therefor although they may not all
have concurred in the act. So, if one of a firm of commission
merchants should be sell goods consigned to the firm fraudulently
or should sell goods so consigned in violation of instructions, all
the partners would be liable. Story on Part. sec. 166; Collier on
Part. (Am. ed., 1848) secs. 445 and 457;
Nicoll v.
Glennie, 1 Maule & Selw. 568.
In precise accordance with this view of the law, it was said,
and well said, by the court in
Olmsted v. Hoatling, 1 Hill
318, that it does not lie with one to claim property through the
fraudulent act of another, whether partner or agent, without being
affected by that act the same as if it were his own, and we think
the same principle must apply in a case like the present, where a
firm doing business as commission merchants have received the
fruits of the fraud in the commissions earned for transacting the
business.
Where one assuming to be an agent had committed a fraud in a
sale, it was held in
Taylor v. Green, 8 Car. & P. 316,
that the mere adoption of the sale and the receipt of the money by
the person for whom the sale was made rendered him liable for the
fraud.
Suffice it to say, without any further reference to authorities,
that the theory of the instructions was sufficiently favorable to
the defendants.
5. Complaint is also made that the instructions excepted to were
not sufficiently comprehensive; that they did not embrace all the
elements which constituted the charge, as laid in the declaration.
Strong doubts are entertained whether this point is properly raised
by the bill of exceptions, but whether so or not, we are satisfied
that the exception cannot be sustained.
Instructions given by the court at the trial are entitled to a
reasonable interpretation, and if the proposition as stated is
correct, they are not as a general rule to be regarded as the
subject of error on account of omissions not pointed out by the
excepting party. Seven requests for instructions to the jury were
presented by the counsel of the defendants, every one of which was
given by the court without any qualification.
Page 64 U. S. 190
If the defendants had supposed that the instructions given were
either indefinite or not sufficiently comprehensive, they might
well have asked that further and more explicit instructions should
be given, and if they had done so, and the prayer had been refused,
this objection would be entitled to more weight.
But another answer may be given to this objection which is
entirely conclusive against it. On recurring to the transcript, we
find that the court, before the instructions excepted to were
given, explained to the jury the nature and character of the
charge, describing substantially the two forms in which it was
presented in the several counts of the declaration, and in effect
instructed them that it must be proved in the one or the other of
those forms in order to entitle the plaintiff to a verdict in his
favor. Those explanations immediately preceded the instructions
embraced in the exceptions, and in fact may be regarded as a part
of the same. Beyond question, the instructions excepted to must be
considered in connection with those explanations, and when so
considered, it is obvious that this objection cannot be
sustained.
In view of the whole case, we think the defendants have no just
cause of complaint, and that there is no error in the record.
The judgment of the circuit court therefore is affirmed,
with costs.
