Page:United States Reports, Volume 2.djvu/50

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, the property for the benefit of all Loyer’s creditors; that, although his factor might have a lien, the vendee of the factor certainly had none. That, in strictness, perhaps, the assignees of Loyer had the right to the Atlas, or the price for which it sold; but that certainly, at the time of the sale, it was not the property of Loyer, and, if not vested in the assignees, it must have belonged to Boinod by virtue of some special lien: And that, upon the whole, the plaintiff was entitled to recover, though he was answerable over to the assignees. Verdict for the Plaintiff.

HE Plaintiff had taken out a subpœna, returnable to December term last, for two witnesses, who lived in Montgomery County; but as they did not then appear, an attachment, directed to the Sheriff ot Montgomery County, was issued, returnable to the succeeding March term; when, likewise, default was made in the appearance of the witnesses; and the cause was continued on a rule for trial at the next term or Non Pros. Another subpœna had been taken out, returnable this day, on which the cause was marked for trial, but it proved as ineffectual as the proceeding writs.

Under these circumstances, Levy, for the Plaintiff, moved to postpone the trial. He stated (and it was not denied by the opposite counsel) that an application on his part to take the depositions of the witnesses had been refused: And he read a letter from the Sheriff of Montgomery, to shew that an attempt had been made to serve the attachment upon the witnesses; a certificate from the doctors to prove that one of the witnesses was sick; and a certificate from disinterested and credible persons to prove that the other witness was out of the way. 1. Dall. Rep. 251. Schlosser v. Lesher.

MᶜKean, for the Defendant, objected to the postponement; and insisted, that the rule for trial, or Non Pros, ought to be forced