The Plaintiffs, being disappointed in their evidence,
voluntarily suffered a nonsuit. The following points, however, were
resolved in the course of the trial, to illustrate which, it is
necessary to relate the leading circumstances of the case. The
Plaintiffs were
Page 1 U.S.
272, 273
owners of a Privateer called the Rattlesnake, commanded by
Captain M'Collough. This Privateer, having taken a valuable prize,
during the late war with Great Britain, carried her into
Martinique, where the Defendant resided as agent for the United
States. At the time of her arrival, the Defendant was exceedingly
embarrassed on account of certain pecuniary engagements, which he
had entered into for the public; and, in order to relieve himself,
he applied to captain M'Cullough for the use of the proceeds of the
Prize, offering to pay the amount by bills of exchange, drawn on
his correspondents in Philadelphia. To this proposal M'Cullough
agreed; and, on delivering to the Defendant the portion of the
prize that belonged to the owners, the bills of exchange were
drawn, and regularly accepted; but when they became due, they were
paid in continental money, which, at that time, had depreciated to
the rate of three paper dollars for one hard dollar. The
Plaintiffs, at first, believing this transaction, between
M'Cullough and the Defendant, to have been on a public foundation,
did not complain of the loss which it occasioned; but settled with
the Captain and Crew for their respective shares of the prize, and
allowed the bills of exchange, in M'Cullough's accounts, as a
specie charge. Afterwards, however, it was suggested to them, that
the whole was a private speculation for the Defendant's emolument;
and that no part of their funds, which had been thus transferred to
him, was carried into his accounts with the United States. Under
this persuasion they brought the present action, to recover the
difference between the value of their effects put into the hands of
the Defendant, and the depreciated amount of the continental money,
in which the bills of exchange were paid; alledging that those
effects had been obtained from M'Cullough under false pretences. I.
The principal witness for the Plaintiffs, was M'Cullough, and, in
hopes, at all events, to secure his testimony (as he was about to
sail on a distant voyage) a rule had been obtained for taking the
depositions of going witnesses, upon the usual terms, and subject
to all legal exceptions. Under this rule, M'Cullough was,
accordingly, examined by the Plaintiffs, and cross-examined by the
Defendant; and his deposition, thus taken, was offered to be read
upon the trial. But two objections were made: 1st, That M'Cullough
was interested in the event of the cause, and, therefore,
inadmissible as a witness, even if he were present: and 2nd. That
no subpoena had issued to procure his personal attendance at the
trial. 1. To the first objection, it was answered by the
Plaintiffs, that it would appear by M'Cullough's cross examination,
that he, as well as the whole crew, had been fully satisfied for
their respective shares of the prize money, and, consequently, that
he was not interested in the fate of this action. It was urged that
the effects delivered to the Defendant, were not delivered on
M'Cullough's account, but on the account of the owners of the
privateer, as their appropriated part of the prize; that,
therefore, having sustained no loss, he would not be entitled to
any retribution; and that, in fact, the only question
Page 1 U.S.
272, 274
arising from the transaction at Martinique, now lay exclusively
between the Plaintiffs and the Defendant, whether the former should
receive from the latter a compensation, equivalent to the loss on
the bills of exchange. But it was insisted, that, at all events,
this objection came too late, as the Defendant had cross-examined
M'Cullough under the Rule; which, having the same effect as if he
had been cross examined in court when sworn in chief, precluded
every subsequent objection to his competency; and that his
deposition must indeed be considered, from the nature of the
questions asked on the cross-examination, as tantamount to a denial
of interest on his voir dire. 4 Burr. 2251. 2nd, On the second
objection the evidence was, that, though M'Cullough had left
Philadelphia, he had not sailed from Marcus Hook, on the Sunday
preceding the day of trial (Wednesday) nor was it certain that he
had even yet taken his departure from that place. But it appeared
that the Plaintiff, although he had not issued a Subpoena himself,
had given notice to the Defendant of the intention of the witness
to sail, in order that he might issue a Subpoena, if he preferred
M'Cullough's viva voce testimony on the trial, to the deposition
under the rule. The Plaintiff contended, therefore, that there was
no reason to suppose that he wished to avoid M'Cullough's evidence
delivered and canvassed in the most open manner; that the spirit of
the rule had been complied with, by putting it into the power of
the Defendant to secure the personal attendance of the witness;
that it would be absurd to require a Subpoena to be issued in all
cases; as, for instance, where the absence of the witness was a
matter of notoriety; and that, in the present case, if a Subpoena
had been served, M'Cullough must either have brought himself into a
contempt of the Court, by disobeying its process; or have run the
risque of ruin, by delaying his voyage. 1. In support of the first
objection, the Defendant's counsel contended, that M'Cullough,
being once interested in the proceeds of the prize, it was not
enough to show that he had been satisfied, but the Plaintiffs must
produce a release. 2 Atk. 15. It was urged, that, in order to
perfect every appropriation of joint effects, the consent of both
parties is necessary; that, in this case, it did not appear that
the Plaintiffs ever consented to the transaction, and,
consequently, M'Cullough still retained the share in the effects
delivered to the Defendant, to which he was originally entitled as
a captain of the Privateer. If then a recovery takes place in the
present action, M'Cullough may hereafter sue the Plaintiffs to
compel them to pay over his share of the money recovered; and,
therefore, his testimony is within the principle of 5 Burr. 2727.
where one insurer was declared to be an incompetent witness in an
action on the policy, because he could compel the other insurers to
contribute. Nor is the objection too late. Depositions in chancery
are always taken de bene esse. When M'Cullough was examined, no
Court was sitting that could pronounce upon his competency; and the
adverse doctrine would involve the Defendant in this dilemma, that
if he did not examine,
Page 1 U.S.
272, 275
he lost all the benefit of the testimony, and if he did examine,
he forfeited all right of exception to the competency of the
witness. There is not, therefore, any similitude between a
cross-examination under such circumstances, and the voir dire,
which is a mere preliminary enquiry; whereas, it appears, that the
witness had undergone a long examination on the part of the
Plaintiffs, before the Defendant proposed a single question to him.
2. In support of the second objection, the Defendant's counsel
refered to the rules, tit. Witness, No. 48; and insisted that these
being literae scriptae to govern the practice of the Courts, it was
incumbent upon the Plaintiffs to prove the service of a Subpoena,
or, at least, a reasonable endeavour to serve it. The greater
satisfaction and justice to be obtained from viva voce testimony
formed the reason of the rule; and this, it was urged, is of such
weight, that the common law never admits depositions to be read,
but in cases of absolute necessity. If then a Subpoena had been
taken out a week ago, is there any ground to assert, that the
witness, whose family resides here, would not have attended; or
that the sailing of the vessel (which may at this moment be
anchored within twenty miles of Philadelphia) could not be safely
postponed? Where then is the absolute necessity to which the common
law yields the wholesome rigour of its rules? It is said, that it
would have been ruinous to M'Cullough if he had been detained: but
this is a matter of which the Plaintiffs had no right to judge; the
witness, in the first instance, and the Court eventually, were only
competent to determine it; and, after all, the service of a
Subpoena does not compel an attendance, but only requires that a
sufficient cause should be shown, why the party did not attend.
Suppose the deposition had not been taken, and the Plaintiffs had
moved to put off the trial on account of M'Cullough's absence,
would not the Court have said then, that they were not entitled to
the delay, as the witness was here a few days ago, and they had not
pursued any legal steps to obtain his evidence? Is there not as
much propriety in saying so now? for it is idle to rely upon the
notice of M'Cullough's intention to sail, since the Plaintiffs had
the same opportunity of detaining the witness which was given to
the Defendant; and the latter would have been absurdly officious
indeed, if he had taken it upon him to subpoena his adversary's
witness.
M'Kean, Chief Justice. There are two ways of proving a witness
to be interested in a cause: first, by examining him on his voir
dire; or, secondly, by showing his interest from other evidence,
either parol or written. But both these ways cannot be pursued at
the same time; for the election of the one conclusively bars any
subsequent recourse to the other. The Defendant's cross-examination
under the rule in this case, is not, however, upon he same footing
with an examination upon the voir dire; and, therefore, we do not
think that he is now precluded from the advantage of any legal
exception to the competency of the witness.
Page 1 U.S.
272, 276
With respect to the admission of testimony, the law has been so
well established, and is so perfectly understood, that it is
needless to enter minutely into the doctrine. The whole, indeed,
may be reduced to a short rule; if the witness speaks under an
interest, it is fatal to his competency; if he is liable to an
influence, it taints his credibility. On the present occasion, we
are of opinion that Captain M'Cullough, at the time of taking the
deposition, was not an interested witness; and, therefore, if there
was no other objection, we should certainly allow the Plaintiffs
the benefit of his testimony: For, in the authority cited from Atk.
15. Lord Hardwicke can only mean, that a witness, who has been once
interested, shall be presumed to be so still, unless the contrary
is proved by a release, or other satisfactory evidence. The
Plaintiffs, however, have failed in another respect. A Subpoena
ought certainly to have been taken out, and, if possible, served
upon the witness; for, it was his, and not their, province, to
determine whether he would attend or not. The rule never was meant,
indeed, to direct an useless thing; such as issuing a Subpoena for
a witness actually residing in London, or any other distant
country; though even this was heretofore required in strict
practice. But, in the present instance, Captain M'Cullough was
known to be here a few days ago, his family always resides here,
and he may himself, probably, be within a very short distance of
the city, at this moment. The Plaintiffs, having taken it upon
themselves, not only to decide for the witness, that he would not
attend, but also for the Court, that they would not insist upon the
rule, have acted in their own wrong; and, upon this objection, we
are of opinion, that the deposition ought not to be read in
evidence. II. The Defendant's counsel offered his books to prove,
that in his account with the United States, at the time of the
transaction between him and M'Cullough, there was a considerable
balance in his favor. But it was objected, for the Plaintiffs, that
the books of a party are only evidence of goods sold and delivered,
or work done; and that, therefore, they were inadmissible to the
present purpose, which was to show that the money was advanced upon
a contract different from that which the Plaintiffs alledged. To
this it was answered, that although the books of a party are only
evidence to charge in the cases mentioned, yet, that they might
well be received to establish a matter collateral to the cause.
And by M'Kean, Chief Justice. This is a point, that I do not
remember to have ever occurred before. The books are not offered to
prove a charge against the Plaintiffs, but only to determine a
collateral question, whether a third person was the Defendant's
debtor, at a particular period? How can this be accomplished, but
by the evidence of the books, fairly and regularly kept? To make it
a charge, other vouchers of the entry might be necessary; but
for
Page 1 U.S.
272, 277
this purpose, if it is of any importance to the cause, (which I
do not think) I can conceive no other mode of proceeding.
The Defendant, thinking, however, that he could accomplish his
object in another way, did not call for a decision of the Court;
but waved the reading of the books.
For the Plaintiffs-Ingersol and Sergeant.
For the Defendant-Tilghman, Lewis, and Wilson.
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