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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Edinburgh, Leith, and Hull Shipping Company, v. Ogilvie. [1819] ScotJCR 2_Murray_136 (31 June 1819) URL: http://www.bailii.org/scot/cases/ScotJCR/1819/2_Murray_136.html Cite as: [1819] ScotJCR 2_Murray_136 |
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Page: 136↓
(1819) 2 Murray 136
CASES TRIED IN THE JURY COURT.
No. 23.
PRESENT,
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.
“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↓
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.
Page: 138↓
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.
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.
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.
Page: 139↓
Jeffrey objects.—The clerk ought to be called.
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.
Page: 140↓
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.)
