Parole proof found not relevant to counteract a bill of lading unretired.
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Wilson and Corse shipped on board a vessel at Leith, of which Kay was master, bound for Newcastle, a number of empty pipes and hogsheads, the bill of lading bearing, “That the casks were to be delivered at the last mentioned port, to Green and Company.”
Green and Company, however, denied that they ever received those casks, or had any notice of their arrival; upon which Wilson and Corse brought, before the Magistrates of Edinburgh, as Admirals-depute, an action against Kay for the value. The Magistrates allowed to Kay a proof of delivery; but afterwards decerned against him. He then removed the cause into Court by suspension; and the Lord Ordinary allowed a farther proof by witnesses. Kay admitted that he had not got up the bill of lading, not obtained any separate written receipt for the goods; but insisted on establishing the actual delivery by the parole proofs.
The question being brought under review by reclaiming petition, and answers,
The Court were of opinion, That parole proof could not be admitted to counteract the unretired bill of lading; and found Kay liable.
Lord Ordinary, Alva.Act. Cullen.Alt. W. Craig.Clerk, Home.
Fol. Dic. v. 4. p. 157. Fac. Col. No 325. p. 499.
