The survey, and condemnation, in this case, do not proceed on the single ground that the vessel was unsound or rotten, but on that fact, connected with other defects and circumstances; and it is, therefore, impossible for the court to say, whether the ■ single cause of rottenness would have been deemed by the surveyors to be, of itself, a sufficient cause of condemnation for unseaworthiness. The survey, then, in this case, is not to be received as. conclusive. The cases of Garrigues v. Coxe, and Amroyd v. The Union Insurance Company, which have been cited, are in point; and if the case were otherwise doubtful, those' decisions deserve great weight.
The evidence of the declaration of Rogers was admissible; because, though the plaintiff offered the survey as preliminary proof, yet the defendant offered it as proof in chief; and the plaintiff had a right to show the contradictory declarations of Rogers, as a witness for the defendant. The plaintiff is entitled to judgment.
Judgment for the plaintiff.
See 4 Johns. Rep. 132. S. C.