As bearing upon the question whether the Rail Road had received the cotton for transportation as a common carrier, and as confirmatory of the statement of the Agent that it had not, the defendant offered to ask the Agent whether it was not the custom to weigh and mark goods as they were taken for transportation, the goods in question not having been weighed and marked. The evidence as to the *13 custom was ruled out. In. tbis there was error; and for this error there must be a venire de novo.

The learning upon the question will be found in the authorities cited at the bar. See especially Price v. Earl of Torrington, 1 Salk., 285, (1 Sm. L. C., [390.])

Per Curiam. Venire de novo.