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Cite as: [1819] ScotJCR 2_Murray_136

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SCOTTISH_HoL_JURY_COURT

Page: 136↓

(1819) 2 Murray 136

CASES TRIED IN THE JURY COURT.

No. 23.

Edinburgh, Leith, and Hull Shipping Company,

v.

Ogilvie.

1819. May 31.

PRESENT, Lord Gillies.

Finding as to delivery of a cask of paint, and that, by the usage in Leith, delivery of goods to carters there, is not equivalent to delivery to the consignee in Edinburgh.

Suspension of a charge by the defender for the price of a cask of paint.

Defence.—The cask was delivered to a Leith carter, with proper directions.

ISSUES.

“1 st, Whether the suspenders, on or about the 17th May 1814, delivered the goods referred to in the lybel, to Widow Wilson and to George Stedman, members of the Society of Carters in Leith, with

Page: 137↓

proper directions to deliver the same to the charger?

2 d, Whether, when goods are transmitted by smacks or coasting vessels from England, and consigned to persons in Edinburgh, delivery of the said goods to a member of the Society of Carters in Leith, with proper directions, but without a receipt, or insertion in the Carter's books, is, by the usage of the trade in Leith, held to be equivalent to delivery by the ship-owners to the consignee in Edinburgh?”

Two casks of paint were sent to the defender. He admitted receipt of one, but said the largest had not been delivered. The suspenders, pursuers of the Issue, maintained, that their contract was only to carry goods to Leith, and that delivery there to a regular Leith carter was sufficient.

Parol evidence incompetent in proof of a decision in a Court of Record.

A witness was called to prove, that delivery to a Leith carter was held good delivery, and was proceeding to state an instance in support of his opinion.

Lord Gillies.—This was a trial in a Court of Record, and we cannot take the decision from a witness.

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An objection was taken to a witness, that his name was not in the list; the name in the list being J. F. Walker, instead of James Thomas Walker.

A witness rejected, from an error in the name inserted in the list.

Lord Gillies.—I must proceed on the same ride as in the Court of Justiciary, and reject this witness.

When the first witness for the defender was called,

Jeffrey objected.—He is interested, as he is a partner of the present Shipping Company, in which the late company is merged, and for the debts of which they are liable.

Forsyth.—They must prove this if they insist in it. His interest, if he has any, is against us, and therefore he is a competent witness for us.

Lord Gillies.—The Edinburgh, Leith, and Hull Shipping Company does not now exist, and cannot be represented. The present Company is not here as a party, and where is the evidence that the former one merged in this? If you mean to prove this by a witness, I think that evidence would be incompetent.

A bulker's book being sworn to be an office book, received as evidence.

A witness produced the bulker's book, written by a clerk.

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Jeffrey objects.—The clerk ought to be called.

Lord Gillies.—The witness held this to be an office-book, and regulated his conduct by it. I therefore hold it to be evidence.

Jeffrey.—The sum demanded is very small, but involves a general question. We shall prove by our landing book, that the cask was delivered to a Leith carter, which is the same as delivery to a carrier; and when things are lost, it is the carter who is liable.

Cockburn.—The simple fact in this case is, whether this cask was delivered? We shall prove that it was not delivered. They prove that they delivered it to a carter; but he did not deliver it to the defender.

The second Issue is not a question of opinion, but usage; and they have failed in proving it. Leith carters are not carriers.

Lord Gillies.—We have merely the question of fact to try; and it appears to me, that the landing book of the Company, the bulker's book, and the carter who actually received the cask, are sufficient to prove the

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first Issue, and to warrant you in finding that the cask was delivered to the carter.

On the second Issue it is impossible to deny that there is contradictory evidence; and, what is singular, the witnesses were perfectly fair, and appeared to give their evidence under a proper sense of their oaths. The Shipping Company being pursuers, are bound to prove the affirmative of the Issue, which is, not what should be the rule, but whether it was held as the usage of Leith, to free the Company, on delivery to the carter.

The evidence for the pursuers, I conceived sufficient to prove their case; but there have been a number of witnesses equally respectable brought on the other side. The question is, whether the pursuers have proved the understanding to be general? and if you cannot go that length, you must find for the defender.

Verdict—“For the pursuer on the first Issue, and for the defender on the second.”

Counsel: Jeffrey for the Pursuer.
Forsyth and Cockburn for the Defender.

Solicitors: (Agents, Daniel Fisher, and James Dunlop, w. s.)

1819