by John Marshall

“ Suppose Marbury had in consequence of the actual institution of a prosecution against Fitzhugh, refused to act under the deed. Would not a Court of Chancery have decreed him to execute the trust, or have appointed some other trustee to execute it? It certainly would.
It is then the opinion of the Court, that, even supposing the deed to have been executed in the hope and expectation that it would operate as a suppression of the prosecution, the favoured creditors having done nothing to excite that hope, and being entirely ignorant of the transaction, ought not to be affected by it. ”

“ It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man. This fact certainly indicates the interest taken by Marbury in the escape of Fitzhugh, but goes no farther. ”

“ It may have been intended to say, that if the jury should draw the conclusion which was authorized by the Court, respecting the motive and intent with which the deed was executed, they should then find the deed fraudulent and void as against the plaintiff. But such is not the direction of the Court, as it appears in the case before us. The second clause of the instruction is entirely independent of the first, and the jury is directed to find the deed fraudulent and void, if the facts stated in the bill of exceptions are believed. ”