The main question in the case is, whether the defendants are liable in this action for the safe transportation of the flour after it went out of their possession. I am of opinion, that simply as depositories or forwarders, they are not liable, having used ordinary diligence in forwarding the property by responsible persons. It appeared that the defendants were allowed for the storage of the whole quantity of flour delivered to them; and it also appeared that it was their custom to deliver the property to the forwarders subject to charges, and that such was the fact in this case. If so, they had already received their storage, and it ought not to have been again allowed.
The defendants were allowed an order drawn in 1822, which the plaintiff offered to prove had been already paid by him. The proof was rejected, because the bill of particulars *595presented by the plaintiff did not contain the accounts by which he proposed to prove the payment. On the part ot the defendants, it is said the proof was rejected as well on that ground as because the evidence offered was insufficient in itself. It is clear, however, that the referees decided that the plaintiff could not introduce any accounts not in his bill of particulars. In this they erred. The account offered was not for the purpose of making out the plaintiff’s case in the first instance, but to rebut evidence produced by the defendants. Of course it could not be in the bill of particulars.
In my opinion, the report should be set aside, unless the defendants will deduct the sum of $133 57, the amount of the charge for storage, and the amount of the order allowed by the referees.