Page:United States Reports, Volume 1.djvu/286

Rh 

1788.

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. Rh