F. & E. PECK VS. DINSMORE et al., 4 Port. 212

HOPKINS, J. — It appears, from the bill of exceptions in this case, that the plaintiffs in error, produced, at the .trial of the cause, the bill of lading, which showed that the cotton had been shipped by, and in the name of one Weynass. The bill of exceptions states that they then proposed to prove by Weymss, that he shipped the cotton as their agent, and that the cotton belonged to them ; “ and then offered the bill of lading in evidence, which testimony the Court overruled, and refused to allow to go to the jury.

We understand, from the record, that the bill of lading was not read as evidence to the jury, but that the Circuit Court rejected it, when the plaintiffs offered to read it as testimony. It was offered without any proof that it was executed by the authority of the owners of the steam boat, or of the hand-writing of the person, whose name was signed to it as clerk.

The declaration was not upon the bill of lading; it was not, therefore, without proof of its execution, competent evidence; but the production of the hill of lading, was an admission by the plaintiffs, that the undertaking of the owners to carry the cotton to the city of Mobile, was in writing, and as they failed to prove the written contract, they had no right to prove a parol agreement, not in writing, to transport the cotton.

The witness Weymss, was offered to prove, that they owned the cotton, and he shipped it as their agent, but not that the owners agreed to carry it. .Such evidence alone, did not tend to prove, that the owners of the boat undertook to carry the cotton; .and when the only testimony of an undertaking, on their part, was properly rejected, it was proper to reject, also, the evidence of the witness, because it was irrelevant.

The facts, which the plaintiffs proposed to prove by the witness, that the .cotton belonged to them, and he shipped it as their agent, could not affect the owners of the boat, and evidence of them was, therefore, incompetent, after the only testimony, that was offered of an undertaking, .on their part, to carry the cotton, had been rejected. Let the judgment be affirmed.