Page:United States Reports, Volume 1.djvu/285

274 

1788.

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 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, he