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Walker v. Brungard et al. & Poindexter, with several indorsers for upwards of $20,000. By some arrangement, Brungard afterwards procured Samuel Anderson, of Louisiana, as an indorser. The other parties to the notes lived in this state, and all proved to be utterly and hopelessly insolvent. Brungard sued out an attachment in Louisiana against Anderson. This attachment was dismissed by the court, and the order of dismissal affirmed on appeal, because a proper foundation for it could not be laid. Anderson brought suit against Brungard's surety in the attachment bond, and this suit was compromised by Brungard's surrender of the notes indorsed by Anderson, and by the dismission of the suit upon the attachment bond, at the costs of Anderson. It is now sought to make Brungard liable for the amount of the notes so surrendered. It strikes the mind at first with some degree of surprise, that so large an amount should have been given up, to obtain the compromise. That surprise is dissipated, when, upon examination of the proof, it is found that every man upon the paper was insolvent. Anderson was the only one of whom any hopes could be entertained. He became a certificated bankrupt, and the only property of his which could by possibility have been reached, was an interest in some lands and negroes which he had mortgaged, and on which the mortgage debt did not fall due for some two years. Before a judgment could have been obtained, and this property seized under execution, it is probable that time would have elapsed. It was in the diligent prosecution of the agency he had undertaken, that Brungard's liability to a suit on the attachment bond accrued. If he or his surety had been subjected to recovery, the trust estate was justly liable for the damages, if he acted with good faith, and with reasonable skill and diligence. By the compromise, he exempted it from this hazard, and he gave up a very uncertain and contingent advantage. Brungard procured the indorsement of Anderson, after the notes were put in his hands. He gave up, therefore, only what he himself procured. Without that indorsement, the notes were utterly worthless. There is no proof, on which an estimate approaching accuracy could be made, of the value of this debt, if indeed, under the circumstances, it were of any value. The
Walker v. Brungard et al.
attachment, which was the only process that promised any benefit, turned out to be unavailing, because Anderson was not subject to it. Reasonable diligence and good faith are what is required of an agent. Story, Bailm. 296; Story, Agency, 272. No lack of either of these qualities is established. We do not, therefore, see how Brungard is to be made liable for this debt, as the proof is such as to show an extreme improbability that any thing could have been realized upon it, by any course which could have been taken.
As to the next exception. The amount therein referred to as having been received by Brungard, was paid to him as a premium for his own indorsement, and his agency in procuring other indorsers for Walker, upon his large contract with Folkes. We know of no principle, on which he could be made to account for it to the trust fund or to Walker. Indeed the transaction took place some time before the deed of trust was executed.
In regard to the last exception, Brungard ought not to be charged with the invoice price of the goods, unless he received it, or lost a part of their value by want of diligence, or of good faith. He is charged with the price which he got, and there is no proof that they were worth more. It was the remnant of an old stock, on which of necessity there must have been great loss.
We have now gone over all the points made in the argument, and have been struck with the accuracy of the conclusions, to which a laborious investigation conducted the mind of the chancellor. His written opinion exhibits a thorough acquaintance with the facts in all their relations. We think his decree was correct, and that it should be in all things affirmed.
A petition for a re-argument was filed, but not granted.
ACTION ON THE CASE.
that the plaintiff had a legal right or interest in the matter or thing affected
Lacoste v. Pipkin, 589.
to them, during the time of the hire, unless he prove an injury to his rever-
commissioners of the sinking fund, when they consisted of the president and
Dean v. Young, 118.
2. It was further held, that the cashier of the branch at Jackson was a competent
witness without a release from the commissioners of the sinking fund, to
fund, and he was therefore testifying against his interest. lb.
the grantor in the deed, or the surety of such agent be subjected to a recov-
faith and with reasonable skill and diligence. Walker v. Brungard, 723.
for collection, instituted proceedings at law by attachment against slaves and
which were formerly in the discretion of the court, are now matters of duty;
time. Shields v. Taylor et al. 127.
not final until the end of the term, until which time they may, on proper
showing, be set aside. Ib.
his behalf, in an action on the same bill in another court; the plaintiff de-
the court refused to set the judgment on the demurrer aside, and the
to the plea, and it was error to refuse it. Ib.
of which the plaintiff replied ; to the replication to one the defendant de-
Aldridge v. Grider, 281.
Moore v. State of Mississippi, 259.
writ of error from the circait court can be prosecuted, and if the case comes
missed. Beazley v. Prentiss, 97.
Lewis et al. v. Miller, 110.
in filing his record, he cannot afterwards sue out a writ of error; the rule is
Smith v. Union Bank of Tennessee, 240.
value of work and labor done, and materials furnished in the erection of the
setting aside the first verdict. Moody, v. State of Mississippi, 642.
final or interlocutory appealed from; the power of the chancellor to grant the