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Walker v. Brungard et al. consideration known to witness being his own indorsement, and procuring indorsements to make the security of the sale perfectly satisfactory to the Messrs. Folkes. He states further, that of a stock of goods returned from Arkansas to Mr. Walker, the invoice was $3000; what became of them he does not know.

E. D. Downs proves, that he has known Brungard for ten or twelve years, during which period he has resided in Warren county; and that the records of the court show no judgments against Brungard as surety for Walker in Jan. 1838; that he has known Walker for five or six years; and that there were no judgments unsatisfied previous to Jan. 15, 1838; that Walker's habits are good, and he had never known him to be a drunken, crazy old man; that he is clerk of the circuit court; that the judgment of Walker, use of Brungard against Cooper, was on the 15th of Sept. 1841, paid to R. L. Moore, the attorney for the plaintiff'; that on the 18th of May, 1840, Brungard obtained judgment against Moore and Emanuel for $1942.50, which on the 26th of June, 1840, was paid to French and Burwell, attorneys for Brungard.

John M. Chilton states, that Brungard offered to the Commercial & Railroad Bank to pay debts on which the witness was surety for him, the plantation and brick house in controversy ; that the bank refused the offer; that Brungard and A. V. Brookie were doing business in Arkansas under the style of A. V. Brookie & Co.; that Brungard assigned to him the nominal sum of $20,000 of claims on persons in Arkansas as indennity against the debt he was indorser on for Brungard, and afterwards on a settlement assigned them absolutely to him.

E. G. Cook states, that he was present when Brungard bought the plantation at sheriff's sale; Brungard said but little to him, but his impression was, from the way in which such things were done in other cases, that Brungard was buying for Walker; that Brungard told him he was indorser for a large amount for Mr. Walker, and wanted to make as much out of the land as possible; that Brungard bid the land off, apparently for his own use; that he attended the sale to bid for it as the land adjoined his; that he cannot say how much he would have bid for it, if not

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Walker v. Brungard et al. spoken to by Brungard, certainly not much more than Brungard had to pay for it. That a tract of land adjoining this was put into the Union Bank at $35 per acre, and another appraised at $40, but both superior to the Walker tract, wbich was without wood, and exhausted from cultivation.

Samuel Anderson states, that Brungard sued him in the month of October, 1839, for about $5000, in Louisiana ; that he levied an attachment on a tract of land, some slaves, and cotton, which was discharged as irregular, and the decision affirmed on appeal. Brungard sued Anderson, Shelton & Co., also by attachment, for $16,000, which suit he dismissed; he gave John Millikin as surety on his attachment bond, for about $32,000; that he (the witness) sued Millikin, as Brungard's surety, for about $7000, for damages when the suit was compromised, Brungard delivering up the notes on which suit was first brought, and the witness dismissing the suit against Millikin; it was the first part of the compromise, that the witness to deliver up the notes and accounts of Samuel Anderson, and Samuel Anderson & Co. to Brungard, who was to pay the costs of suits, &c.; it was afterwards altered, that witness was to pay the costs of all the suits, and retain the notes and accounts, &c. The books and accounts referred to were nominally about $30,000 or $40,000, but he had realized but little out of them; that his property was all mortgaged to Nelson F. Shelton, and the mortgages recorded in the proper office, and might have been readily found before Brungard brought his suit; that the Nelson F. Shelton, who held the mortgages on his property, was the partner of Anderson, Shelton & Co.

John McLawrin states, that he knew the firm of Folkes, Walker & Co.; that he was employed to put their books to rights; found them full of errors; but Mr. Walker in his line, that of finance, he found to be a man of probity and capacity; who arranged not out of his own funds from $160,000 to $180,000 of the debts of S. & M. C. Folkes, this sum being paid on the credit and with the funds of S. & M. C. Folkes, and Folkes, Walker & Co.

William R. Lewis states, that the slave, Elmira, was bought Walker v. Brungard et al. of him by Mrs. T. F. Walker, in April, 1837, for $500, and paid for with her own money; that all the notes, bills, &c., embraced in the original deed, were put in Brungard's hands, by the assent of all parties, when the deed was signed; he knew of none that was withheld ; that Brungard was to appropriate the notes and proceeds collected to pay the noies of Walker, on which he was indorser; that on the 10th of December, 1838, he was present at a conversation between Walker and Brungard about the brick store, which he as trustee was to sell in January, 1839; that in this conversation, Brungard said, that as property in the hands of trustees could not be mortgaged to any bank, he (Brungard) was to become the nominal possessor to place it in the Union Bank, the proceeds of which were to be for the exclusive benefit of the trust fund; and Brungard was to give Walker a letter to that effect, to carry out which Brungard desired him to publish the advertisement in only one paper, to avoid publicity and competition; the property was knocked down to Brungard for the nominal sum of two thousand dollars; that the deed of trust of January 15, 1838, was made solely to secure Brungard against his indorsements for Walker, for which Brungard had received a remuneration of $10,000, or thereabouts.

In answer to a question to state all else he knows, he replies: that after he sold the brick store to Brungard, under the deed of trust in 1839, he saw in the August following, that property advertised for sale by the sheriff, to pay Brungard's individual debts, which he thonght a breach of the agreement on Brungard's part, to devote it to the trust fund, and for that reason he and his co-trustee, at the special request of T. F. Walker, refused to sign the deed at the second sale of property under the original deed, not feeling justified in confiding more property into the hands of said George Brungard, until he had satisfactorily accounted for that which he had already obtained ; that these questions were forwarded to him to Jamaica, but not getting them there, he swears to them before a magistrate in Vicksburg.

John F. Walker states, that Mrs. Walker bought, with her

Walker v.

Brungard et al. own money, the negro girl, Elmira, and so neither he nor his co-trustee had any claim to her; that she was included in the trust to prevent creditors attaching her and forcing Mrs. Walker to replevy her; that all the notes, accounts, &c., with his consent, were placed, by Thomas F. Walker, in Brungard's hands, to collect and settle up for the benefit of the trust; the property delivered to Brungard, consisted in its nominal amount in notes, $54,000, open accounts, $6536.44, goods, $3000, real estate, $90,293, according to the face of the deeds; also, two slaves and furniture, the proceeds of which were to be appropriated to the payment of Walker's debts, on which Brungard was indorser; that the sale of the brick house was effected by a concerted agreement between the trustees and Walker; that Brungard should buy at the nominal price of $2000, and put the property in the Union Bank for the benefit of the trust fund, to enable Brungard to meet his indorsements for Walker, and not for Brungard's own use; that the cost of repairs on this house, as lately stated by Brungard, was $1643.93; that Brungard then, and before he bought the plantation, stated he bought it for Walker's benefit; so wrote to Walker, and has charged the trust with the cost of its purchase; that the $9250 was a bonus for Brungard's indorsements for Mr. Walker; that he became trustee at Walker and Brungard's request; that when he sold the brick store, &c., advertised to be sold under judgments against Brungard, he applied to the sheriff, who told him Brungard had handed the description to him for a levy; that an arrangement was at one time attempted, by which John Walker (the witness) was to become the owner of the plantation at $12,000, which was to go to the payment of the indorsement liabilities of Brungard, and the letter of T. F. Walker, of April, 1839, to Brungard, was in connection with this arrangement, which fell through ; that in November, 1839, Brungard offered this property to the Commercial and Railroad Bank, to pay an individual debt of his own, on which J. M. Chilton was indorser, which was refused, because T. F. Walker informed them his creditors claimed it; that Brungard's wife bought in September, 1839; that Brungard being already in possession of

Walker v. Brungard et al.

two of the most valuable properties of Walker, the brick house and plantation, the witness and his co-trustee refused to put hini in possession of any more, until he accounted satisfactorily for what he had, and therefore they refused to make him a deed to that which he last purchased.

A. H. Rowlett states, that he has examined E. H. Maxcy's notarial books, who protested most of the notes of Walker on which Brungard was indorser, and there was no record of the notices of protest, or of any thing but the note; that Brungard had been made liable by the verdict of a jury for $32,000 of his indorsements for Mr. Walker, which was all unpaid ; that the judgment in favor of Wilcox, Anderson & Co., had all been paid by Brungard, being $13,333.

J. G. Bibby states, that certain notes, amounting in the aggregate to about $40,000 of various parties, had been left by Thomas F. Walker with the Commercial and Railroad Bank, as collateral security for certain notes upon which Brungard was indorser for Walker.

Henry Green swears, that he was the commissioner of the chancery court who took John F. Walker's deposition; that on the day John F. Walker swore to the same, he came into the office of the witness, where Mr. Burwell, Brungard's counsel, was sitting; that John F. Walker asked him to walk in the back room, when he presented his interogatories and answers already written out, and desired the witness to take his affidavit in that room, as he did not want Mr. Burwell, who was the attorney of the opposite party, to see his answers; witness refused, on the ground, that Burwell had a right to hear the answers; John F. Walker still insisted, and witness refused, when they went in the front room where Burwell was, when witness told Burwell what passed, when Burwell insisted on hearing them read, upon which witness swore Walker, and the questions and answers were read by him, and Burwell also examined them; that from the mode in which John F. Walker read the answers, mistaking the word “replevying” for the word “replying;” and upon Mr. Burwell's suggesting the error, his appearing confused and not understanding it, and his hesi

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VOL. XIII.

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