stockholder in the same, and had conversation with him relative to the said forgeries; and that the said Smith, after being informed that the said forgeries amounted to only about five or six thousand dollars, and that he thought he had property enough to pay all his debts, if judiciously managed, said to the said Fitzhugh, that he had no doubt the said Marbury would take up and pay all the said forged notes, and that nothing more would be said about it; and said Fitzhugh begged of said Smith to see said Marbury, and recommend that course to him, which said Smith promised to do the next morning: that when said Smith called for that purpose the next morning, he found said Marbury with said Fitzhugh, and the said John Marbury, Esquire, together at the office of the latter, engaged in drawing a deed: that the said William Marbury declared, in consequence of finding the forgeries amount to so much more than he expected, that he would pay nothing; and the said Smith left the office before the said deed was executed: that on the day of the execution of said deed above given in evidence, a note to which the said W. Marbury's name had been forged by Fitzhugh, and by him passed for value received to one G. R. Gaither, became due and payable at said Farmers' and Mechanics' Bank, where the same was deposited by the holder for collection, said Bank having no interest in the same : that the holder had called at the Bank, and expressly ordered the said note to be sent out and presented for payment, in order that the said Marbury might distinctly avow or disavow his signature; and to be protested if not admitted and paid; and that the said Marbury, either in the evening of the same day the 1822. Marbury V. Brooks. 1822. Marbury v. Brooks. deed was executed, and after the execution of the same, or in the morning of the next day, called at said Bank and took up said note, after it had been sent out to the Notary, and before the return of the protest; that said Marbury, at the same time, took up another forged note and a check due to the said Bank, (both being also forgeries of the said Fitzhugh,) upon neither of which his (Marbury's) name had been forged; and the said two notes and checks were the whole of the paper forged by said Fitzhugh, which was then due and demandable ; and said Marbury took up said notes and check in anticipation of funds expected to arise from the property conveyed as aforesaid; and took the receipt of C. Smith, cashier of said bank, for the amount so paid on said forged notes and check, in the words following: "Georgetown, January 1, 1820. "Received of William Marbury, twelve hundred and fifty dollars forty cents, part of the debt due the Farmers' and Mechanics' Bank of Georgetown, mentioned in the deed of R. H. Fitzhugh to the said Marbury, dated 31st December, 1819. $1250 40. C. SMITH." That the said Marbury, in a conversation, the day after the execution of said deed, relative to the said deed, and to the circumstances attending the execution of the same, expressed regret at having had any thing to do with it; represented that said Fitzhugh had come to him in tears; and entreated him to save him, or screen him from prosecution, and to have the affair hushed up, (or words to that effect;) and the said Marbury, in that conversation, expressed it as his wish, that it might be hushed up and the said Marbury, in the course of conversation, further remarked, that said Fitzhugh seemed scarcely to know what he was about, and would have done any thing to get away and said Marbury further remarked in said conversation, that said Fitzhugh had a rich uncle disposed to assist him, and his father was expected in town in a few days, and that if his debts did not amount to too much, they might all yet be provided for; that he (Marbury) did not suppose the loss, upon winding up said Fitzhugh's affairs, would exceed ten thousand dollars; that if it did not exceed that sum, his friends would arrange the whole, and he (Marbury) himself would be willing to go as far as five thousand dollars, if Fitzhugh's other friends would answer the balance; and the said Marbury further remarked, that if twenty thousand dollars would save him (Fitzhugh) from disgrace, he (Marbury) would pay it; that what he had already done, was to save Fitzhugh from prosecution, he (Marbury having no interest in it;) and that said Marbury, in another conversation, speaking of having taken up the said note due to said Gaither, said he was anxious to get the forged notes out of the way: and that after the execution of said deed, the defendant was unwilling to leave the District, and wished to remain at least a week longer; and that the attorney who drew the said deed, being nearly connected with the parties as the son of the trustee, and brotherin-law of said Fitzhugh, persuaded and advised him to quit the District, and among other reasons, urged, 1822. Marbury V. Brooks. 1822. Marbury Brooks. that if all the parties were satisfied to let him remain unmolested, still Mr. Richard Smith, the Cashier of the Branch Bank of the United States, (which is one of the Banks which the said deed purports to secure,) would feel himself compelled to prosecute; and that it would be more than his office was worth to overlook it, on account of the great interest the Bank of the United States felt in prosecuting and bringing to justice persons guilty of forgery: that said William Marbury also urged said Fitzhugh to quit the District, in order to get out of the way of prosecution; and that said Fitzhugh, in the night of the same day said deed was executed, actually fled from justice, and absconded as aforesaid, with the privity and consent of said William Marbury; and that neither he, nor any person on the part of any of the said banks interested in said deed, did ever move in the said prosecution, or attempt to have the said Fitzhugh arrested and brought to justice; and that it was known to the acting officers and agents of the said banks, before the departure of the said Fitzhugh, that he was guilty of said forgeries. Then the jury may conclude from the said facts and evidence, that the said deed was devised and executed by the said Fitzhugh, and accepted by the said William Marbury, with the motive and intent of prevailing with the holders of the said forged notes to forego a prosecution for the said forgeries; and also, that upon the facts so given in evidence on the part of the plaintiff as aforesaid, if believed by the jury to be true as stated, that the said deed is fraudulent and void as against the plaintiff. Which in struction the Court gave as prayed. To which the defendant excepted. And the said garnishee, having offered evidence to prove the following facts, viz: That after the execution of the said deed, the said Fitzhugh was urged by the said John and William Marbury to fly from the District; that the said Fitzhugh made great objections to going away, and wished to remain a week, and upon being told that he would be in danger of arrest and prosecution, if he did so, the said Fitzhugh replied that he could not be arrested until the meeting of the Court; but upon being satisfied that he might be called before a magistrate, and immediately arrested, and the observation before stated being made about Mr. R. Smith, and being told of the punishment to which he was exposed, he consented to go. And he further offered to prove, by the evidence of the said John Marbury, a witness sworn in the cause, that he was not certain who first proposed the drawing of the new deed; but to the best of his recollection, the proposal came from said Fitzhugh, and that said W. Marbury was requested by said Fitzhugh to become the trustee; to which he consented. That at the time of the execution of the said deed, the said Fitzhugh executed the same voluntarily, and that no expectation was held out to him, either by himself, or by Mr. W. Marbury, or any other person to the witness's knowledge, either then or at any time before, that by executing the same he would be saved from a prosecution; nor was there any promise or expectation given, that they, the said Marburys, or either of them, would endeavour to pre 1822. Marbury V. Brooks. |