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.