#### WOOD AND POMEROY *v.*PERRY.

Error — bill of lading — receipt may be explained — bill of exceptions.

Where the bill of exceptions shows an isolated item of evidence, without showing the state of case on which that item was offered, a court of error will not presume the court below erred in admitting it.

A bill of lading is of twofold aspect, a *receipt*and a *contract to carry and deliver*— as a receipt it is like other receipts only prima facie evidence of what is expressed in it, and may be explained by aliunde evidence.

Error to the Court of Common Pleas. The case below was assumpsit on a bill of lading for goods injured in the possession of the carrier.' The bill of exceptions showed that on trial of the issue of non assumpsit the plaintiff exhibited the bill of lading which contained the usual clause, shipped in *good order*and *well*conditioned, and proved that when the goods arrived they were injured. The defence set up was that the goods were injured before they were taken on board.

Proof was offered of that fact and that they were carefully handled and used in their transit. One deposition had this clause *241marked as objected to when taken, viz. ‘When the person arrived at N. Orleans applied to have the goods taken up, he said there were seven crates, but that they were in bad order when he delivered them. He said that four were all that he could get ready, and these were not in very good order; they were old and much broken.’ This was objected to, but admitted by the court. The plaintiff then asked the court to charge the jury, that if the goods were damaged on their arrival at Cincinnati, and were not damaged by the dangers of the river, the plaintiff was entitled to recover. The court refused so to charge, but did charge, that the bill of lading was only prima facie evidence that the goods were in good order when delivered. These matters were assigned for error.

Wright, J.

As to the admission of the testimony, we do not see the error complained of — the passage objected to, is an isolated passage in a deposition. It may or may not have been -admissible by reason of other matter in evidence of which we know nothing. *The person*whose conversation was detailed may have been the shipper himself, or the agent for aught that we know. We are not to *presume*the court erred in admitting the evidence — the error, if any, must be shown.

2. Was there error in refusing the charge asked for, or in giving that which was given? If the proposition is sustainable that the bill of lading is conclusive evidence of the condition of the goods when delivered, so that you cannot look back of it even to detect a fraud in the shipment, then an adroit person, artfully keeping out of view defects known to him, could always put off his merchandize as sound, and hold the carrier accountable for unsound goods at a sound price! This would be a convenient way of .selling a bad article for a good one. We know no law which requires us to uphold frauds of this 'character. The bill of lading has two aspects, that of a receipt, and that of a *contract*to carry and deliver. As a receipt it is like other receipts, only prima facie evidence of what is contained in it and may be made to conform to the real facts, by evidence aliunde. The point was so decided by the Court in Bank, in *Babcock*v. May, *et al.*4 *O. R.*346.

The judgment is affirmed with costs.