Carter vs. Bennett.-Statement of Case. claim the negroes, which being done, there would be no further difficulty in replevying them, as Bennett and his friends could and would give any security that the marshal would require. As witness was there, Harris proposed to Col. Jordan to intercede with witness to go with them to Apalachicola, and to make to him a bill of sale to the negroes, for the purpose of replevying them. This arrangement Bennett strongly backed, and urged both to Col. Jordan and witness that the bill of sale should be executed to him. Witness objected, and replied to his proposition that he had a power of attorney from Warren Jordan, regularly executed and recorded, constituting him his agent in any State or Territory in the Union, which was amply sufficient to enable him to replevy the negroes-to which Bennett replied that his friends at Apalachicola were respectable and wealthy merchants, but they knew but little about legal matters, and they had been advised by counsel that the negroes could not be replevied unless the person had a bill of sale to them, and that unless he took one, it would be out of his power to afford him the aid he desired to do. It was finally settled and agreed that witness should take the bill of sale, upon a pledge of honor from Bennett, made both to Jordan and witness, and over and over repeated, that himself and his friends would afford ample security to enable him to replevy the negroes. Under these promises, and for the satisfaction and gratification of Bennett, witness received the bill of sale from Jordan to the negroes, to which Bennett and Harris were subscribing witnesses, and for the sole and only purpose of enabling him to replevy them for the benefit of Warren Jordan, who was the true and bona fide owner of them. In the event of witness having to claim the negroes personally, he thought it best to execute his note to Jordan for something like the value of the negroes, and some money was laid on Carter vs. Bennett.-Statement of Case. the table at the time the bill of sale was signed, and which was taken up again by witness in the presence of the witnesses to the bill of sale, and put in his pocket, they knowing that not one cent was actually paid, or even intended or expected to be paid, and that the note which was executed by witness to Jordan was not accepted, or intended by either of them ever to be paid, which facts were as well known and understood by Bennett as by themselves, the whole being done to place matters in a form to please Bennett, and thereby secure his promised aid in procuring the security necessary to replevy the property. -That on the arrival of witness at Apalachicola, he found it impossible, in consequence of the character and amount of the bond required, to replevy the negroes-that Bennett could not render him the assistance which he had promised, and that he then determined to make it the interest of some person to aid him in his object and purposes, by making an offer of a portion of the negroes as an inducement. This he accordingly did, but was not successful that he finally sold the negroes to Bennett and Floyd, as they were, in the jail of Franklin county, stating to the purchasers at the time that he had no valid title to them, and that he did not mean the sale to interfere with the rights of Warren Jordan or his creditors. He moreover required from Bennett, as a condition of sale, a written acknowledgment under the hands and seals of himself and Floyd, that they bought the negroes without delivery, as they stood in the possession of the Marshal, "subject to all the liabilities that were against them in the way of debt, either by note, judgment or mortgage, in the State of Georgia, either as the property of" Jordan or himself, which paper, bearing the same date as the bill of sale made by witness, is in these words, viz: 300 SUPREME COURT. ODLE AN Carter vs. Bennett.-Statement of Case. TERRITORY OE FLORIDA-FRANKLIN COUNTY. Whereas, Reuben Thornton, of the County of Hall and State of Georgia, has this day sold to R. J. Floyd and A. T. Bennett, the following negroes which are now in the hands and possession of the Marshal under an attachment sued out against one J. L. Hodges, to-wit: old Tom, Dick, Allen, Cato, Charles, Gilbert, Amos, Merida, Elias, Jack, Abram, Major, Ben, Sam, Jeffrey, Rica, Moses, Americus, Albert, Billy, Isaac, John, Coon, Joe, making twenty-four fellows; Grandison, Fayett, Andrew, Virgil, Washington, Tom, Marcus, Clem, William, Monroe, Wylie, Charles, Simeon, making thirteen boys; Sarah, Martha, Patsey, Jane, Susan, Narcissa, Jinsey, Dinah, Harriet, Fada. Mariah, Milley, Rachel, Penny, Sally and Nancy, making sixteen negro women; Charlotte, Caroline, Antoinette, Camilla, Frances, Lucinda, Ellen, Sarah, Amanda, Fanny, Avarilla, Mary, Crissa, Abby, Clarissa and Jenny, making seventeen girls; Jenny, William, Henry, Albert, Cornelius, Randle, Henry and Emeline, making eight infants, which said negroes are sold by the said Thornton to us, the said R. S. Floyd and A. T. Bennett, subject to all the liabilities that are against them in the way of debt, either by note, judgment or mortgage, in the State of Georgia, either as the property of Warren Jordan. or the said Reuben Thornton, the said Reuben only warranting the same against himself and his heirs. This is therefore given by us to show that if any of said property should be lost by suit in consequence of any claims as aforesaid, that it is to be no offset or plea against the payment of the note of seven thousand dollars, bearing even date. with these presents, given by said Bennett and Floyd in payment for said negroes, as witness our hands and seals, this 16th day of March, 1842. R. J. FLOYD, [Seal.] Carter vs. Bennett.-Statement of Case. Which acknowledgment, under the hands and seals of Floyd and Bennett, was signed, sealed and delivered in the presence of J. C. Harris and J. M. Teague. The defendant then exhibited to the jury the record of the proceedings, and decree and judgment of foreclosure in the case of Farish Carter, Assignee of the Georgia Railroad and Banking Company-the execution issued thereon, together with the necessary evidence of levy and sale by the Marshal. There was a vast amount of other testimony introduced and read on the trial of the cause, not however deemed material to be herein set out or stated. The following instructions were asked by defendant's counsel, viz: 1st. That a party cannot be admitted to gainsay or deny his own solemn oath of record made in this court, setting up the facts sworn to as a defence in the action, and when such oath is introduced to the jury, it is conclusive against the party making such oath, and the highest possible evidence-which first instruction was refused by the court, and instead thereof, the court gave the following: Instruction first given. Instead of the first,, I state to the jury, that a party cannot be admitted to gainsay or deny his own solemn oath of record made in a court, setting up the facts sworn to as a defence to the action; but he may be permitted to explain it, and to show that it was made in ignorance of his rights, or under a misapprehension in regard to them. 2d. Second instruction asked. That a party cannot claim title to property in any court in this State, when such claim comes through such facts as are sworn to in the plaintiff's affidavit introduced in this trial, dated 24th July, 1844, and filed in the suit of Charles T. Thornton, to foreclose a mortgage against Bennett and Floyd, a copy of Carter vs. Bennett.-Statement of Case. which is herewith filed, marked A. Such affidavit is con clusive against Bennett, as proof of the facts there sworn. The following is the affidavit referred to: FRANKLIN SUPERIOR COURT, ON PETITION TO FORECLOSE MORTGAGE. A. T. Bennett, impleaded with R. J. Floyd, ads. Charles T. Thornton. The defendant, in pursuance of law, files herewith the following objections to the decree of foreclosure, herein protesting in the first place that the plaintiff is not entitled to the same, for objections apparent in the said proceedings, for which the same should be dismissed. The defendant sets forth that the note of $7,000 which said mortgage was given to secure, was made and executed in consideration and payment of certain negro slaves sold to defendant on the 16th day of March, in the year 1842, the same being specially set forth in a bill of sale executed by one Reuben Thornton to defendants; that said slaves, being the property of one Warren Jordan in the State of Georgia, were fraudulently, clandestinely, covinously, collusively, wickedly, illegally, and improperly, against the laws of said State run off, removed and carried away from said State by said Jordan and said Reuben Thornton, said removal being made, executed, contrived and devised of fraud, covin, collusion and guile, to convey them from said State out of and beyond the United States, to Texas, to the end, purpose, and intent to convert them to their own use and profit, and to delay, hinder and defraud the Georgia Railroad and Banking Company and others to whom said slaves had been mortgaged, and other creditors in said. State of Georgia, contrary to the laws of said State; that the sale to said defendants by the said Thornton and the giving and taking of the said note of $7,000 and its assign |