1822 Marbury V. Brooks. vail with the holders of the said forged notes, or any other persons, to forbear arresting or prosecuting the 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, for 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 give 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. H. Fitzhugh, owing the debts mentioned in the deed of fered in evidence, executed and delivered the same, (voluntarily and bona fide,) and without any threat of prosecution, and without any promise or agreement made to him, and without any expectation on the part of said Fitzhugh, raised by the acts of said Marbury, 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 1822. Marbury Brooks. 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 plain tiff 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 any other person, directly or indirectly 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 said deed was executed as aforesaid, with the purpose and design of preventing and defeating any legal recourse in behalf of such majority of creditors, against the property and effects which said Fitzhugh intended to leave behind, and did leave behind him, when he fled from justice as aforesaid; and if it be further found that no creditor whatever of the said Fitzhugh was party or privy, or in any manner consenting to the execution of the said deed, then the said deed is fraudulent and void in law, as against the plaintiff. Which instruction the Court gave; but also instructed the jury that the preference given by the said deed to some of the creditors of said Fitzhugh, did not of itself make the said deed fraudulent and void in law. To which also the defendant excepted. And the defendant further prayed the Court to instruct the jury as follows: If the jury should believe, from the evidence, that Richard H. Fitzhugh, owing the debts mentioned in the deed, executed the same under an expectation that it might have prevented him from being prosecuted for the forgeries, and that neither the said William Marbury, nor any of the holders of the said forged notes, nor persons interested in the same, held out to him any such expectations, then the said deed is valid, and the plaintiff not entitled to recover. Which opinion the Court refused to give, but instructed them as follows: If the jury should believe, from the evidence, that Richard H. Fitzhugh, owing the debts mentioned in the deed, exccuted the same under an expectation that it might prevent him from being prosecuted for 1822. Marbury Brooks. 1822. Marbury V. Brooks. March 19th. March 21st. the forgeries, and that neither the said William Marbury, nor any of the holders of the said forged notes, nor persons interested in the same, held out to him any such expectation, then the said deed is valid, (unless there should be some other objection to it,) and the plaintiff not entitled to recover. To which refusal the defendant by his counsel excepted and the plaintiff also excepted to the instruction given by the Court. A verdict and judgment thereon having been rendered for the plaintiff, Brooks, in the Court below, the cause was brought by writ of error to this Court. This cause was argued by the Attorney-General, and Mr. Key," for the plaintiff in error, and by Mr. Jones," for the defendant in error. Mr. Chief Justice MARSHALL delivered the opinion of the Court. This is a writ of error to a judgment rendered in the Circuit Court of the United States for the county of Washington. In the Circuit Court the controversy turned entirely on the validity of the deed of the 31st of Dec. 1819. The jury found against its validity, and the cause depends in this Court on the correctness of the instructions under which the verdict was found. a They cited 1 Johns. Cas. 205. 2 Johns. Ch. Rep. 297. 4 Wheat. Rep. 503. 13 Vin. Abr. 517. pl. 10. 541. pl. 3. Ambl. 596. 4 East's. Rep. 13. 5 T. R. 424. 8 T. R. 528. b He cited 9 Johns. Rep. 337. 5 Cranch, 350. 6 Mass. Rep. 339. Cowp. 434. Roberts on Frauds, 585, |