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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.

Decree affirmed.

A petition for a re-argument was filed, but not granted.

INDEX.

ACCOUNT.
See Chancery.

ACKNOWLEDGMENT.
See Deed; for form of, and what sufficient.

ACTION ON THE CASE.
1. In an action on the case for injuries to personal property, it must be proved

that the plaintiff had a legal right or interest in the matter or thing affected
by the injury, at the time of such injury. The absolute or general owner
having the right of immediate possession, may in general support an action
for an injury thereto, though at the time when the injury was committed,
the goods were in the actual possession of a servant, carrier, or other bailee ;
but if the goods have been let to hire, the action cannot be sustained by the
general owner, unless an injury to the reversionary interest is established.

Lacoste v. Pipkin, 589.
2. If the owner of slaves hire them to a third person, he cannot sue for an injury

to them, during the time of the hire, unless he prove an injury to his rever-
sionary interest. Ib.

AGENCY
1. In this case the question was, whether a payment made by a debtor of the

commissioners of the sinking fund, when they consisted of the president and
cashier of the Planters’ Bank at Natchez, and the auditor of public accounts,
to the cashier of the branch of that bank at Jackson, was a valid payment;
and in that was involved the question of the extent of the agency of the
cashier of the branch at Jackson to receive the payment; the facts are re-
viewed and the conclusion reached that the payment was invalid, because
the cashier of the branch at Jackson was not authorized to receive it,

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
prove for them that he did not act as agent of the commissioners in receiving
the payment; for the commissioners denied this agency, and he was there-
fore in no wise liable to them; and if liable at all, it was to the debtor of the

fund, and he was therefore testifying against his interest. lb.
3. If the agent appointed by the trustees in a deed of trust, with the consent of

the grantor in the deed, or the surety of such agent be subjected to a recov-
ery resulting from an effort to recover or secure the trust funds, the trust
est ate would be justly liable for the damages, if the agent acted with good

faith and with reasonable skill and diligence. Walker v. Brungard, 723.
4. Reasonable diligence and good faith are what is required of an agent. Ib.
5. An agentor trustee, to whom certain notes belonging to a trust were committed

for collection, instituted proceedings at law by attachment against slaves and
property of the parties to the notes, and was compelled to give bond with
surety, to prosecute the suit to effect; he failed in the attachment, and being
threatened with a suit on the bond against himself and surety, compromised
the matter by delivering up all the notes on which he had sued; which
nominally amounted to a large sum, but really were worthless: Held, that
if the trustee acted in good faith and reasonable diligence in the matter, he
would not be liable. Ib.

AMENDMENT.
1. Since the act of 1840, regulating the practice in the circuit courts, amendments
proceedings thereon, and ordered the plea of non-assumpsit to be substituted
in their stead; this was done, neither party objected, and the cause was
tried and a verdict found for plaintiff: Held, that the action of the circuit
court was within its powers of amendment as established by the statute
(Hutch. Co. 854, § 21); but if it had transcended them, the defendant, not
having excepted at the time, could not afterwards object in this court.

which were formerly in the discretion of the court, are now matters of duty;
and it will be error to refuse to allow them, when applied for at the proper

time. Shields v. Taylor et al. 127.
2. Judgments on demurrers are, under the statute, (How & Hutch. Dig. 619, 99,)

not final until the end of the term, until which time they may, on proper

showing, be set aside. Ib.
3. To an action on a bill of exchange, the defendant plead a former recovery in

his behalf, in an action on the same bill in another court; the plaintiff de-
murred; and the plea was adjudged good, and judgment entered for defen-
dant; two days afterwards the plaintiff entered a mution to set the judgment
aside, and for leave to reply to the plea; the motion was continued to the
next term, when the plaintiff's counsel read a transcript of the record of the
former judgment with his affidavit, that he did not consider it a bar to the
action;

the court refused to set the judgment on the demurrer aside, and the
plaintiff excepted; held, that the plaintiff should have been allowed to reply

to the plea, and it was error to refuse it. Ib.
4. To an action of assumpsit the defendant pleaded two defective pleas, to both

of which the plaintiff replied ; to the replication to one the defendant de-
murred, and the demurrer was overruled; no rejoinder was filed to the
replication to the other ; the circuit court struck out both pleas, and the

Aldridge v. Grider, 281.
5. The law of amendments does not apply to criminal cases.

Moore v. State of Mississippi, 259.

APPEAL.
1. The parties to the record are the only persons in whose name an appeal or

writ of error from the circait court can be prosecuted, and if the case comes
up in any other name, it cannot be entertained; an appeal, therefore, prose-
cuted in the name of and by the assignee of a judgment, from the decision of
the circuit court, quashing an execution upon the judgment, must be dis-

missed. Beazley v. Prentiss, 97.
2. An appeal does not lie from a mere refusal of the chancellor to dissolve an
injunction on motion, there being no answer or demurrer to the bill.

Lewis et al. v. Miller, 110.
3. Such refusal is not an interlocutory order, but a refusal to make any order at

all. Ib.
4. After an appeal has been dismissed, because of the negligence of the appellant

in filing his record, he cannot afterwards sue out a writ of error; the rule is
different where the appeal is dismissed without the fault of the appellant.

Smith v. Union Bank of Tennessee, 240.
5. In a suit brought in the superior court of chancery against the state, for the

value of work and labor done, and materials furnished in the erection of the
state-house, the chancellor ordered an issue to the circuit court of Hinds
county, to ascertain the amount due; the jury found a verdict in favor of
complainant, to which no exception was taken in the circuit court by either
side, though the state moved unsuccessfully there for a new trial ; the chan-
cellor, however, set the verdict aside on its return to his court, and ordered a
new trial at his bar, from which order the complainant prayed, but did not
prosecute, an appeal ; the second issue was tried at the bar of the chancery
court, and resulted in a second verdict for complainant, which the chancellor
also set aside, and directed a new trial; to this the complainant excepted,
and embodied the evidence in a bill of exceptions, and prayed, but the chan-
cellor refused, an appeal: Held, first, that the appeal being from the refusal
to confirm the second verdict, and the allowance of the second new trial, the
high court could not inquire into the propriety of the order of the chancellor

setting aside the first verdict. Moody, v. State of Mississippi, 642.
6. Held further, that the whole appeal was premature; there was no decree either

final or interlocutory appealed from; the power of the chancellor to grant the

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