
    John Dorr et al. versus Paschal P. Pope.
    Where in assumpsit on a policy of insurance on a ship, the declaration alleged tho. the ship, by force and arms and in a hostile manner, was captured, seized and taken by certain armed soldiers and thereby wholly lost, and the plaintiff* proved by witnesses, that she was seen in the possession of armed soldiers in a foreign country, and that she never returned home, it was held, that lie had made out, primA facie, a loss, and that he was not bound to read in evidence the record oí a trial and decree of condemnation, which he had in court and which he offered to the defendant to be used by him if he thought proper.
    Assumpsit on a policy of insurance upon the ship Esther, at and from Boston to Valparaiso, and at and from thence to all ports and places to which she may proceed, backwards and forwards, until her return to her port of discharge in the United States, the risk commencing December 1.4, 1821, and being limited to two years from that time, against perils of the seas, fire, enemies, pirates, assailing thieves, restraints and detainments of princes, &c.
    The plaintiffs aver their loss thus : — “While the ship was at Callao, then under the Peruvian government and in the kingdom of Lima, to wit, on the 28th of December, 1822, she, with a part of her cargo then on board, with force and arms and in a hostile manner, was captured, seized and taken by certain armed soldiers, and thereby the ship and cargo became wholly lost to the plaintiffs, and of no use to them.”
    The subscribing of the policy by the defendant, the interest of the plaintiffs, and an abandonment in September, 1823, were proved or admitted.
    The plaintiffs then, to prove the loss, read the deposition of one Harrison ; who testified, that he arrived at Callao about the 29th of January, 1823, and that from that time until the following June he resided in the city of Lima ; that during all that period Callao was in the possession of the Patriot or Republican party ; that he saw the ship Esther, early in 1823, at Callao, after her seizure and while in the possession of the Patriot government, with a file of soldiers on board ; that he understood she was condemned between March arid June, ¿'823, but that he was not in the court-house during the trial. The plaintiffs also examined a witness, who testified that the Esther, after sailing from Boston, had never returned there. This witness, being cross-examined, testified, that he had heard that she had been tried at Callao ; that he had heard Dorr, one of the plaintiffs, say that she had been condemned at Lima, but Dorr also said, at the same time, that the condemnation was unjust and irregular.
    The defendant then read a letter from the plaintiffs, dated November 12, 1823, addressed to the agent of the underwriters and referring to a copy of the translated documents of condemnation by the Patriot government of Peru ; the originals of which were admitted to be in the plaintiffs’ hands at the trial, and by them were offered to the defendant, if he chose to use them.
    The defendant here insisted, that the plaintiffs were not entitled to recover upon this evidence, and the plaintiffs having rested the case here, the jury were instructed, that the plaintiffs were entitled to a verdict; and a verdict was returned accordingly.
    
      Gorham and Loring, for the defendant,
    contended that if the evidence had a tendency to prove a loss in the manner set forth in the declaration, yet that the plaintiffs had not produced the best evidence which the nature of the case would admit. The seizure, unless it was illegal, was not a loss for which the underwriter was answerable. The presumption is, that the trial and condemnation were legal and the seizure justifiable ; and the burden was on the plaintiffs to prove the contrary. They were bound to produce the record of the trial and com demnation, as it was in their possession. 1 Stark. Ev. 389 ; 3 Stark. Ev. 1251 ; Williams v. E. I. Company, 3 East, 192.
    
      Hubbard and Sumner, contra,
    
    said the plaintiffs had made out, prima facie, a loss by seizure of the vessel, and the burden was on the defendant to prove that the seizure was lawful. In practice, the record of condemnation is often produced on the part of the underwriter. Fisher v. Ogle, 1 Campb. 418 ; Lee v. Boardman, 3 Mass. R. 238; Baxter v. N. E. Mar. Ins. Co. 7 Mass. R. 275; Ludlow v. Dale, 1 Johns. Cas. 16; Francis v. Ocean Ins. Co. 6 Cowen, 406; Coster v. Reed, 6 Barn. & Cressw. 19; Mitchell v. N. E. Mar. Ins. Co. 6 Pick. 117.
    June lOth.
    
      
      S. D. Parker, for the defendant.
    Davis, Solicitor-General, for the Commonwealth.
    
      Iune 27th.
    
   Per Curiam.

The proof is, that the ship was seen in the possession of armed soldiers at Callao, and that she never returned. This was certainly sufficient, had not the witness who testified to the latter fact, stated that he had heard she had been tried at Callao, and that he had heard one of the plaintiffs say she had been condemned, but unjustly and irregularly. It is contended that this state of the evidence required that the plaintiffs should produce the record of trial and decree of condemnation, the same witness having seen documents relating to the trial in the plaintiffs’ possession. We do not think that this evidence imposes the duty on the,plaintiffs of producing those documents in support of their action, which was maintained without them. A condemnation was not alleged, nor was it necessary to be proved. It may be that the evidence called for would defeat their action, and it is quite enough for them to tender the documents to the other party.

Motion to set aside the verdict overruled.  