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Brooks.

1822. that if all the parties were satisfied to let him remain vM7rCry' "nmolested, 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 he 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 Marhury 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

Marbury

T.

Brooks.

struction the Court gave as prayed. To which the 1822. 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 themeeting 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 vail with the holders of the said forged notes, or any ^Jv^XT"/ other persons, to forbear arresting or prosecuting the v- said Fitzhugh: and further, that neither the witness,

nor W. Marbury, ever made any such application to any of the said holders, or to any other person: and further, that at the time of the execution of said deed, all expectation of preventing a prosecution, or concealing the said forgeries, was abandoned, and that the only mode pointed out to said Fitzhugh, foi avoiding said prosecution, was by an immediate flight: and all the said forged notes still remain in said banks, except the two notes and the check mentioned in the statement of plaintiff's evidence; and upon the evidence, offered as aforesaid, both on the part of plaintiff, and the garnishee, and so stated as aforesaid, the garnishee, by his counsel, prayed the Court to instruct the jury.

If the jury believe, from the evidence, that R. H. Fitzhugh, owing the debts mentioned in the deed offered in evidence, executed and delivered the same voluntarily and without any threat of prosecution, and without any promise or agreement made to him— that in case of executing it, he would not be prosecuted, then the plaintiff is not entitled to recover. But the Court refused to gire the instructions as prayed by the defendant, and in lieu thereof, gave the following instructions, to wit:

If the jury believe, from the evidence, that R. HFitzhugh, owing the debts mentioned in the deed offered in evidence, executed and delivered the same, (voluntarily and bona /Wc,)and without any threat of prosecution, and without any promise or agreement

v.

Brooks.

made to him, and without any expectation on the 1022. part of said Fitzhugh, raised by the acts of said Mar- ^J^^ bury, or of some of the persons interested in the said trust—that in case of his executing it he would not be prosecuted, and that possession of the said goods accompanied and followed the execution of the said deed, then the plaintiff is not entitled to recover. To which refusal the defendant excepted; and the plaintiff excepted to the instructions granted by the Court. And the defendant, by his counsel, then prayed the Court to instruct the jury, that if they believed from the evidence, that the said R. H. Fitzhugh, owing the debts mentioned in the deed offered in evidence, executed and delivered the same without any persuasion or threats, and upon his own proposal, and without any understanding with any body, that by executing the same he should be saved from prosecution, and that nothing was said or done by any person for the purpose of influencing him by any such consideration to execute the same, and that the previous understanding between him and said Marbury, as to the latter paying and taking up the said forged papers was before the execution of the said deed abandoned, and that there was no understanding between the said Fitzhugh and the said Marbury, that they, or either of them, should forbear prosecuting him, or should attempt to prevail with the holders of said forged paper to forbear prosecuting him on account of the same, nor any understanding with said holders that they should so forbear, and that no attempt whatever was ever made so to prevail upon the said holders, nor in any man

Vol. VII. 72

1822.

Marbury

v. Brooks.

ner to prevent such prosecution; and that said Fitzhugh, at the time of executing such deed, asserted that he had property enough, if judiciously managed, to pay the said forged paper and all his other debts also; and that said Marbury and the said holders of said forged notes could have instantly prosecuted the said Fitzhugh for said forgeries without violating any promise or understanding that had subsisted between them ; and that unless he had absconded as aforesaid, he would have been by the said holders immediately prosecuted for said offences, and that such prosecution was not in any manner avoided by the execution of said deed, but only by his absconding from the District, then the jury may and ought to presume, that the said deed was executed bona fide and for a valuable consideration; and that the plaintiff is not entitled to recover; which instruction the Court gave. To which opinion and direction, the plaintiff excepted.

And thereupon the plaintiff prayed the Court to instruct the jury, that if, under all the circumstances before given in evidence, the jury shall find that the obtaining of impunity or forbearance of prosecution, for the said forgeries, formed no part of the consideration or inducement for the execution of the said deed, with said Fitzhugh, or with auy other person, directly or iudirectly concerned, still if the jury find from the evidence, that the great majority of the creditors of said Fitzhugh, in number and value, were by means of said deed unjustly and purposely hindered, delayed, and defeated in their proper suits and remedies, for the recovery of their said debts, upon the absconding of said Fitzhugh, and that the

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