1 U.S. 272 (1788)

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MIFFLIN v. BINGHAM, 1 U.S. 272 (1788)

1 U.S. 272 (Dall.)

Mifflin et al.

Supreme Court of Pennsylvania

April Term, 1788

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 [1 U.S. 272, 274]

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