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.