1822. Marbury V. Brooks. District of Columbia, Washington County, viz. On this thirty-first day of December, in the year eighteen hundred and nineteen, personally appeared before me, the subscriber, a Justice of the Peace, in and for the District and County aforesaid, Richard H. Fitzhugh, party grantor within named, and acknowledged the aforegoing instrument of writing to be his act and deed. THOMAS CORCORAN. And after the evidence on both sides had been fully examined, the plaintiff, having offered evidence tending to prove the following facts, prayed the instruction of the Court to the jury, if the jury find from the evidence that the said Fitzhugh, being a merchant and trader at Georgetown, in the county aforesaid, had committed divers forgeries of notes, and indorsements of notes, upon which he obtained money and credit to the amount of from fourteen thousand to fifteen thousand dollars; and that he was bona fide indebted to the plaintiff and divers other creditors, (all of whom are interested, as attaching and general creditors, in the determination of this cause,) for goods, wares, and merchandizes, and for moneys lent and advanced, to the amount of $20,000, or upwards, over and above the said forgeries; that William Marbury, the trustee, named in the said deed, and the garnishee summoned in this cause, is the father-in-law of said Fitzhugh; and that the said Marbury, before the execution of the said deed, being desirous to screen the said Fitzhugh from disgrace and prosecution for .he said forgeries, and understanding that the said forgeries amounted only to about five or six thousand dollars, had consented to pay off the same, and take a deed of trust or mortgage from the defendant, by way of collateral security for the moneys so to be advanced by him; and that in pursuance of that arrangement, such a deed of trust or mortgage, by way of collateral security, was actually drawn and executed; in which was included the same identical property mentioned and conveyed in and by the deed above given in evidence; but the said Marbury, discovering that the amount of forgeries was in fact so much greater than had been represented, and finding that he would have to pay from fourteen to fifteen thousand dollars, instead of five or six thousand dollars, in order to accomplish his first design of screening said Fitzhugh from disgrace and prosecution, refused to advance any money to take up the forged notes; and said, "I will not ruin my family for you: now, I advise you to make your escape as soon as you can." Whereupon, the said deed, so executed as aforesaid, was cancelled and torn up, and immediately afterwards, another deed (being the same now produced) was drawn by John Marbury, a witness present at its execution : that the said deed was executed after the noon on the day on which it bears date; and that on the night of the same day, the said Fitzhugh absconded from the District of Columbia, and was so absconding from that time, until, and at the time the attachment issued in this cause, and ever since: that the creditors, whose debts the said deed purports to secure, were wholly ignorant of the execution, and of 1822. Marbury V. Brooks. 1822. Marbury V. Brooks. the intent to execute the same, until after the same was executed as aforesaid; and were not in any manner privy or consenting thereto; except that the said William Marbury held stock as a trustee in one of the said banks, and John Marbury, the attorney who drew the same, was a stockholder in another of the said banks; that the whole of said property lay within the county aforesaid, and would have been subject to this attachment, but for the said conveyance: that the said deed includes and conveys the whole of the property, choses in action, and estate of every kind, in possession of said Fitzhugh, or to which he was in any manner entitled, at the time of executing the same: that the whole of the debts, which the said deed purports to secure, stood upon no other foundation than that of notes forged by the said Fitzhugh, and passed by him as genuine to the banks respectively mentioned in said deed, and discounted by said banks for him, and the money thereupon advanced to him, (such notes, however, being all actually signed or endorsed by said Fitzhugh, and he being liable for the payment thereof,) to the respective amounts stated in said deed; and that at the time of the execution of the said deed, it was expected and understood, that it comprehended all the cases in which the said Fitzhugh was involved by means of his said forgeries, and was not intended to comprehend any other, except as to the surplus, after satisfying said forged paper; and that said Fitzhugh, the evening before the execution of the said deed, called on C. Smith, the cashier of the Farmers' and Mechanics' Bank, in said deed mentioned, and a 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 night 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: 66 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 |