Neilson and others against The Columbian Insurance Company, 1 Johns. 301

Per curiam. The admission of the case made on a former trial, as evidence to show what the witnesses then swore in order to discredit them at the second trial, was improper. The case is not evidence upon oath. It may have been made up by consent, and the points in contradiction may not have been particularly attended to by the judge, before whom it was corrected. The case is conclusive against the parties, as to the facts contained in it; but not against third persons, whose veracity or credit is called in question.

Though the case ought not to have been received in evidence, yet, in fact, it contained nothing to contradict, or discredit the witnesses, and could not have influenced the decision of the jury. There was evidence of a deviation ; a departure from within sight of Madeira, to the Cape de Verd Islands, a distance of 1,000 miles, without a real necessity. If there had been a necessity for the deviation, still the vessel might have returned to Madeira, with little or no re- . n r , , pairs ; there was no adequate or justifiable cause tor breaking up the voyage.

On the whole, the verdict appears to be warranted by the evidence, and agreeable to the merits and of the case. Postea to the defendants.