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 que-
