# Mifflin v. Bingham

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MIFFLIN et al. verʃus BINGHAM.
T
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owners of a Privateer called the Rattleʃnake, commanded by Captain M‘Cullough. This Privateer, having taken a valuable prize, during the late war with Great Britain, carried her into Martinique, where the Defendant refided as agent for the United States. At the time of her arrival, the Defendant was exceedingly embarraffed on account of certain pecuniary engagements, which he had entered into for the public ; and, in order to relieve himfelf, he applied to captain M‘Cullough for the ufe of the proceeds of the Prize, offering to pay the amount by bills of exchange, drawn on his correfpondents in Philadelphia. To this propofal 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 Plaintiff, at firft, believing the tranfaction, between M‘Cullough and the Defendant, to have been on a public foundation, did not complain of the lofs which it occafioned ; but fettled with the Captian and Crew for their refpective fhares of the prize, and allowed the bills of exchange, in M‘Cullough's accounts, as a fpecie charge. Afterwards, however, it was fuggefted to them, that the whole was a private fpeculation 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 perfuafion they brought the prefent 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 thofe effects had been obtained from M‘Cullough under falfe pretences.
I. The principal witnefs for the Plaintiffs, was M‘Cullough, and, in hopes, at all events, to fecure his teftimony (as he was about to fail on a diftant voyage) a rule had been obtained for taking the depofitions of going witneffes, upon the ufual terms, and fubject to all legal exceptions. Under this rule, M‘Cullough was, accordingly, examined by the Plaintiffs, and crofs-examined by the Defendant ; and his depofition, thus taken, was offered to be real upon the trial.
But two objections were made :–1ft, That M‘Cullough was interefted in the event of the caufe, and, therefore, inadmiffible as a witnefs, even if he were prefent : and 2d. That no ʃubpœna had iffued to procure his perfonal attendance at the trial.
I. To the firʃt objection, it was anfwered by the Plaintiƒƒs, that it would appear by M‘Cullough‘s crofs examination, that he, as well as the whole crew, had been fully fatisfied for their refpective fhares of the prize money, and, confequently, that he was not interefted 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 ; therefore, having fuftained no lofs, he would not be entitled to any retribution ; and that, in fact, the only ​
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queftion arifing from the tranfaction at Martinique, now lay exclufively between the Plaintiffs and the Defendant, whether the former fhould receive from the latter a compenfation, equivalent to the lofs on the bills of exchange.–But it was infifted, that, at all events, this objection came too late, as the Defendant had crofs-examined M‘Cullough under the Rule ; which, having the fame effect as if he had been crofs examined in court when fworn in chief, precluded every fubfequent objection to his competency; and that this depofition muft indeed be confidered, from the nature of the queftions afked on the crofs-examination, as tantamount to a denial of intereft on his voir dire. 4 Burr. 2251.
2d, On the ʃecond objection the evidence was, that, though M‘Cullough had left Philadelphia, he had not filed from Marcus Hook, on the Sunday preceding the day of trial (Wedneʃday) 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 iffued a Subpœna himfelf, had given notice to the Defendant of the intention of the witnefs to fail, in order that he might iffue a Subpœna, if he preferred M‘Cullough‘s viva vice teftimony on the trial, to the depofition under the rule.–The Plaintiƒƒ contended, therefore, that there was no reafon to fupoofe that he wifhed to avoid M‘Cullough‘s evidence delivered and canvaifed in the moft open manner; that the fpirit of the rule had bee complied with, by putting it into the power of the Defendant to fecure the perfonal attendance of the witnefs ; that the fpirt of the rule had been complied with, by putting it into the power of the Defendant to fecure the perfonal attendance of the witnefs; that it would be abfurd to require a Subpœna to be iffued in all cafes ; as, for inftance, where the abfence of the witnefs was a matter of notoriety ; and that, in the prefent cafe, if a Subpœna had been ferved, M‘Cullough muft either have brought himfelf into a contempt of the Court, by difobeying its procefs ; or have run the rifque of ruin, by delaying his voyage.
I. In fupport of the firʃt objection, the Defendant's counfel contended, that M‘Cullough, being once interefted in the proceeds of the prize, it was not enough to fhew that he had been fatisfied, but the Plaintiffs muft produce a releafe. 2 Atk. 15. It was urged, that, in order to perfect every appropriation of joint effects, the confent of both parties is neceffary ; that, in this cafe, it did not appear that the Plaintiff ever confented to the tranfaction, and, confequently, M‘Cullough ftill retained the fhare 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 prefent action, M‘Cullough may here after fue the Plaintiffs to compel them to pay over his ftate of the money recovered ; and, therefore, his teftimony is within the principle of 5 Burr. 2727. where one infurer was declared to be an (illegible text) witnefs in an action on the policy, becaufe he could compel the other infurers to contribute. Nor is the objection too late. Depofitions in chancery are always taken de bene oʃʃe. When M‘Cullough was examined, no Court was fitting that could pronounce upon his competency ; and the adverfe doctrine would involve the Defendant in this dilemma, that if he did not examine, ​
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he loft all the benefit of the teftimony, and if he did examine, he forfeited all right of exception to the competency of the witnefs. There is not, therefore, any fimilitude between a crofs-examination under fuch circumftances, and the voir dire, which is a mere preliminary enquiry ; whereas, it appears, that the witnefs had undergone a long examination on the part of the Plaintiffs, before the Defendant propofed a fingle queftion to them.
2. In fupport of the ʃecond objection, the Defendant's counfel referred to the rules, tit. Witneʃs, No. 48; and infifted that thefe being litera ʃcriptœ to govern the practice of the Courts, it was incumbent upon the Plaintiffs to prove the fervice of a Subpœna, or, at leaft, a reafonable endeavour to ferve it. The greater fatisfaction and juftice to be obtained from viva vice teftimony feemed the reafon of the rule ; and this, it was urged, is of fuch weight , that the common law never admits depofitions to be read, but in cafes of abfolute neceffity. If then a Subpœna had been taken out a week ago, is there any ground to affert, that the witnefs, whofe family refides here, would not have attended ; or that the failing of the veffel (which may at this moment be anchored within twenty miles of Philadelphia) could not be fafely poftponed? Where then is the abfolute neceffity to which the common law yields the wholefome rigour of its rule? It is faid, 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 witnefs, in the firft inftance, and the Court eventually, were only competent to determine it ; and after all, the fervice of a Subpœna does not compel an attendance, but only requires that a fufficient caufe fhould be fhewn, why the party did not attend. Suppofe the depofition had not been taken, and the Plaintiffs had moved to put off the trial on account of M‘Cullough‘s abfence, would not the Court have faid then, that they were not entitled to the delay, as the witnefs was here a few days ago, and they had not purfued any legal fteps to obtain his evidence ? Is there not as much propriety in faying fo now ? – for it is idle to rely upon the notice of M‘Cullough‘s intention to fail, fince the Plaintiffs had the fame opportunity of detaining the witnefs which was given to the Defendant ; and the latter would have been abfurdly officious indeed, if he had taken it upon him to Subpœna his adverfary's witnefs.
M‘KEAN, Chieƒ Juʃtice.– There are two ways of proxing a witnefs to be interefted in a caufe :–firft, by examining him on his voir dire; or, fecondly, by fhewing his intereft from other evidence, either parol or written. But both thefe ways cannot be purfued at the fame time ; for the election of the one conclufively bars any fubfequent recourfe to the other. The Defendant's crofs-examination under the rule in this cafe, is not, however, upon the fame 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 witnefs. ​
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With refpect to the admiffion of teftimony, the law has been fo well eftablifhed, and is fo perfectly underftood, that it is needlefs to enter minutely into the doctrine. The whole, indeed, may be reduced to a fhort rule ; − if the witnefs fpeaks under an intereʃt, it is fatal to his competency ; if he is liable to an inƒluence, it taints his credibility. On the prefent occafion, we are of opinion that Captain M‘Cullough,, at t time of taking the depofition, was not an interefted witnefs ; and, therefore, if there was no other objection, we fhould certainly allow the Plaintiffs the benefit of his teftimony: For, in the authority cited from Atk. 15. Lord Hardwicks can only mean, that a witnefs, who has been once interefted, fhall be prefumed to be fo ftill, unlefs the contrary is proved by a releafe, or other fatisfactory evidence.
The Plaintiffs, however, have failed in another refpect. A Subpœna ought certainly to have been taken out, and, if poffible, ferved upon the witnefs ; 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 ufelefs thing ; − fuch as iffuing a Subpœna after a witnefs actually refiding in London, or any other diftant country ; though even this was heretofore required in ftrict practice. But, in the prefent inftance, Captain M‘Cullough was known to be here a few days ago, his family always refides here, and he may himfelf, probably, be within a very fhort diftance of the city, at this moment. The Plaintiff, having taken it upon the rule, have acted in their own wrong ; and, upon this objection, we are of opinion, that the depofition ought not to be read in evidence.
II. The Defendant's counfel offered his books to prove, that in his account with, the United States, at the time of the tranfaction between him and M‘Cullough, there was a comfortable balance in his favor.
But it was objected, for the Plaintiff, that the books of a party are only evidence of goods fold and delivered, or work done ; and that, therefore, they were inadmiffible to the prefent purpofe, which was to fhew that the money was advanced upon a contract different from that which the Plaintiff's alledged.
To this it was anfwered, that although the books of a party are only evidence to charge in the cafes mentioned, yet, that they might well be received to eftablifh a matter collateral to the caufe.
And by M‘KEAN, Chieƒ Juʃtice.– This is a point, that I do not remember to have occurred before. The books are not offered to prove a charge againft the Plaintiffs, but only to determine a collateral queftion, whether a third perfon was the Defendant's debtor, at a particular period ? How can this be accomplifhed, but by the evidence of the books, fairly and regularly kept ? To make it a charge, other vouchers of the entry might be neceffary ; but for ​
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this purpofe, if it is of any importance to the caufe, (which I do not think) I can conceive no other made of proceeding.
The Defendant, thinking, however, that he could accomplifh his object in another way, did not call for a decifion of the Court;
For the Plaintiffs–Ingerʃol and Sergeant.
For the Defendant–Tilghman, Lewis, and Wilʃon.