Page:United States Reports, Volume 2.djvu/51

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, as the Plaintiff, having neglected to issue a second attachment, had not done everything in his power to procure the attendance of the witnesses.

But, :—It is questionable, whether the Act of Assembly empowers us to issue writs of attachment into another County; and there are other modes of proceeding, equally efficient, and clear of any doubt. It is unnecessary, however, to enlarge at present on this topic; as the Plaintiff has evidently done all in his power to procure the attendance of the witnesses; and the refusal of his overture to take their depositions, is a strong additional circumstance in his favor. The cause must, therefore, be continued, subject to the rule for trial at the next term, or Non Pros: And, in the meantime, we direct, on our own authority, a rule to be entered for taking the depositions of infirm witnesses de bene esse; to be read in evidence upon the trial, in case of death, or inability to attend. To that extent only, however, do we grant the rule; for, we think it would be going too far to add, that the depositions shall be read, in case the witnesses depart from the State.

HIS was an action of debt, to recover a legacy of £150, which Samuel Inglis had bequeathed to his brother George Inglis, the nominal Plaintiff, by his last will and testament, bearing date the 12th of August 1781. The defendants pleaded 1ft. Payment; 2d. Nil debent.

The circumstances of the case were these: The testator died in the beginning of Sept. 1783; and George Inglis, being in an embarrassed situation, obtained a friendly loan from Mr. Coxe, of 100 dollars, and assigned his legacy under his brother’s will to that gentleman on the 5th of April 1784, in trust, that Mr. Coxe should reimburse himself, and pay over the balance to the legatee; who acknowledged, at the time of the transaction, that there was some difficulty in getting the money from the executors. Accordingly, when Mr. Coxe applied a few days afterwards to one of the executors, in behalf of George Ingliss, some doubts were expressed to him, whether the legacy would be paid at all; as G. Inglis was considerably indebted to the estate of the testator, and other persons lately concerned with him in trade; but upon Mr. Coxe’s disclosing the nature of his bond, and of the assignment which he had taken to indemnify himself, the executor, in terms of great caution and expressly for the family honor, promised to pay as much as would satisfy Mr. Coxe’s