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LEWIS ROGERS, APPELLANT, v. JOSEPH G. LINDSEY

December 1, 1851

LEWIS ROGERS, APPELLANT,
v.
JOSEPH G. LINDSEY, HENRY S. ATWOOD, AND JOHN S. BENNETT.



THIS was an appeal from the Circuit Court of the United States for the Southern District of Alabama. The bill was filed by Rogers against Lindsey, Atwood, and Bennett, under the circumstances mentioned in the opinion of the court, and which it is not necessary to repeat. The cause was heard upon the bill, answers, exhibits, and proofs, in the said District Court, on the 17th of April, 1850, and the court being of opinion that the plaintiff, Rogers, by his contract with the defendant, Lindsey, had assigned and transferred the judgment in the said court, in favor of Rogers & Gray against John S. Bennett, to said Lindsey, and that he, Lindsey, and the assignees under him, were entitled to the money made thereon, ordered and decreed that the plaintiff's bill be dismissed, with costs. Rogers, the complainant, appealed to this court. It was argued by Mr. Crittenden (Attorney-General) and Mr. Chilton, for the appellant, and Mr. J. A. Campbell, for the appellee. The arguments of the respective counsel were so much connected with the facts and circumstances of the case, that it is impossible to narrate them without protracting this report to an inconvenient length.

The opinion of the court was delivered by: Mr. Justice Nelson delivered the opinion of the court.

This is an appeal from the Circuit Court of the United States for the Southern District of Alabama.

Lewis Rogers, the appellant, and complainant below, was one of the firm of Rogers & Gray, doing business in the city of Richmond in 1836, and in the course of their business purchased of Joseph G. Lindsey, one of the defendants, a large amount of bills of exchange on the house of Goodman, Miller & Co., of the city of Mobile, of which about the sum of $20,000 was unpaid, and the bills protested. Subsequently, in 1837, a settlement was effected with the firm at Mobile, and payment received in several promissory notes, all of which were indorsed by Lindsey. Among these notes was one made by Bissell & Carville, a business firm in Alabama, dated 20th April, 1837, and indorsed by John S. Bennett, payable 1st January, 1838, for $3,297.27, and which was also indorsed by Goodman, Miller & Co., and Lindsey. This note, and a large amount of the paper thus received in discharge of the debt of $20,000, was dishonored at maturity, and duly protested, and judgments recovered against the several parties liable, in the Circuit Court of the United States in the Southern District of Alabama. The judgment recovered March, 1840, against Bennett, on the note of Bissell & Carville, amounted to $3,875. About this time the partnership of Rogers & Gray was dissolved, and the effects assigned to Rogers, the complainant.

In June, 1840, while the securities, taken in payment of the balance of $20,000 due to the firm of Rogers & Gray, stood in this condition, Lindsey came to the city of Richmond, and made a proposition for the settlement of his liabilities as indorser upon them. They had been left with the Planters and Merchants Bank of Mobile, for collection, and judgments recovered upon them as stated. Lindsey represented that all, or nearly all the parties except himself upon the paper were insolvent, and that little, if any thing, could be realized on the judgments. And he proposed to take them and give a note for $20,000, made by himself, and indorsed by four other persons, citizens of Alabama, who he represented were responsible, and would pay the note at maturity, if Rogers would make a new advance to him of $10,000 on the note of one Hudgings, a citizen of Virginia.

Upon the faith of these representations, and after some inquiries into the responsibility of the parties, Rogers agreed to the proposition, and took the note of $20,000, which was payable the first of January thereafter, and advanced the $10,000 on the Hudgings note; and at the same time gave to Lindsey the following writing:––

'The President or Cashier of the Planters and Merchants Bank will please hold, subject to the order of Mr. J. G. Lindsey all the debts referred to in the inclosed letter from Mr. McFarlin, except the two drafts of McCollier Minge upon the Messrs. Ellicotts, of Baltimore, which, when collected, please place to my credit.' 13th June, 1840.

The list of debts referred to in the letter of McFarlin were the securities that had been left with the bank at Mobile by Rogers for collection, and which had passed into judgments, as already stated.

When this note of $20,000 fell due, on the 1st of January, 1840, it was dishonored, and the paper duly protested. This note has never been paid.

Lindsey, after receiving the authority to control the securities and judgments in the bank at Mobile, returned, and made collections out of them to the amount of between $3,000 and $4,000.

Besides this amount, he has collected the judgment against Bennett to the amount of $6,292.66, principal and interest, that being the amount due at the date of the collection by the marshal, on the execution, June 5th, 1848. The judgment had been recovered March, 1840, and execution issued returnable November term following. An alias was issued 31st January, 1842, returnable March term following; and a pluries 24th December, 1842; a second and third, January and March, 1844; and a fourth and fifth, March, 1845, and April, 1848, on the last of which the sale took place of the property of Bennett.

The execution had been delayed by proceedings in the courts to stay the sale.

This bill was filed in the court below to arrest this $6,292.66, in the hands of the marshal, Rogers claiming that the money belongs to him. It has been brought into court, and awaits the final decree in the cause.

On the 24th December, 1842, Lindsey petitioned for the benefit of the Bankrupt Act, passed August 19th, 1841, and obtained his discharge on the 2d May, 1843.

None of the securities or judgments that he received from Rogers in June, 1840, at the time he gave him the note of $20,000, is found in the list of his assets. The only allusion to them is an obscure reference in his list of creditors to the note of Bissell & Carville, ...


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