Marbury v. Brooks

• Decision Date: 21 March 1822
• Citation: 5 L.Ed. 522,20 U.S. 556,7 Wheat. 556
• Parties: MARBURY v. BROOKS
• Court: U.S. Supreme Court

20 U.S. 556

5 L.Ed. 522

7 Wheat. 556

MARBURY v. BROOKS.

March 21, 1822

ERROR to the Circuit Court for the District of Columbia.

This was an attachment sued out by the defendant in error, Brooks, on the 10th February, 1820, to attach the lands, tenements, goods, chattels, and credits of Fitzhugh, all absconding debtor, pursuant to the act of Assembly of Maryland of November, 1795, ch. 56.; levied in the hands of the plaintiff in error, Marbury, who was duly summoned as garnishee, on the 11th February, 1820. The garnishee appeared and pleaded that he had no effects, &c. of the absconding debtor in his hands, upon which an issue was joined and tried by a jury: verdict for plaintiff in the attachment, and judgment in due form against the garnishee.

Upon the trial, evidence was produced on the part of the plaintiff to prove that the said Fitzhugh had, on the 31st December, 1819, a store of goods in Georgetown, furniture, and other personal property, which came to the hands of the said garnishee, and were afterwards sold and disposed of by him; leaving in his hands, from that time to the present, money and effects of the said Fitzhugh, to a very considerable amount, over and above the debt claimed by the plaintiff in the said attachment: that the said Fitzhugh was, at and before the time of the issuing and

serving of the said attachment, and still is, indebted to the plaintiff in the said sum of $1,421 30 cents. Whereupon the garnishee, in order to prove that the money and effects so being in his hands were not liable to the attachment, produced and read to the jury a paper writing, purporting to be a bill of sale from the absconding debtor to the garnishee, recorded among the land records of the proper county, on the 3d day of June, next ensuing its date, in the words following:

This Indenture, made this thirty-first day of December, in the year eighteen hundred and nineteen, between Richard H. Fitzhugh, of the one part, and William Marbury of the other part: Whereas, the said Richard H. Fitzhugh is indebted to the Farmers' and Mechanics' Bank of Georgetown, in the sum of four thousand three hundred dollars; to the Bank of Columbia, in the sum of two thousand eight hundred and fifty dollars; to the Union Bank of Georgetown, in the sum of fifteen hundred and fifty dollars; and to the Branch Bank of the United States, at Washington, in the sum of seven thousand dollars, all current money; for the payment of which, the said Fitzhugh wishes to provide, and therefore executes this deed or instrument of writing. Now this Indenture witnesseth, that the said Richard H. Fitzhugh, for, and in consideration of the premises, and for the further consideration of five dollars, current money, to him in hand paid by the said William Marbury, the receipt of which is hereby acknowledged, hath given, granted, bargained, and sold, and by these presents doth give, grant, bargain, and sell, unto the said William Marbury, his executors and administrators,

all the stock of goods and merchandize now in the store, on Bridge-street, Georgetown, occupied by said Fitzhugh; also, all the household furniture, goods, and chattels, in the house situate in Firststreet, in the same town, occupied by said Fitzhugh, as a dwelling-house; also a negro woman, Maria, a negro woman named Chloe, and her children, Westly, Caroline, John, and Nancy, all of which said negroes are now in the possession of said Fitzhugh. And the said Richard H. Fitzhugh doth hereby make over, transfer, and assign to the said William Marbury, his executors, administrators, and assigns, all his books of accounts, notes, bonds, and other securities, to have, and to hold, all the said goods and merchandizes, chattels, furniture, negroes, books of accounts, notes, bonds, and securities, unto him the said William Marbury, his executors, administrators, and assigns, for ever: in trust, however, to sell the same, according to the best of his judgment and discretion; and to pay the money thereby arising, as follows: first, to pay the expenses of such sale, and after that, to divide the same between the Banks aforesaid, in proportion to the respective amounts due them; and if any thing remain, it is to be paid to the creditors of the said Fitzhugh, in proportion to the debts ascertained to be due them.'

In witness whereof, the said Richard H. Fitzhugh hath hereunto subscribed his name, and affixed his seal, the day and year before written.

R. H. FITZHUGH.

Signed, sealed, and delivered in my presence, the word 'three,' being first interlined in the sixth line of the first page.

[SEAL.]

THOMAS CORCORAN.

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 the 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

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...