r. BARNETT. [681] MUGGLETON interpretation. It may be observed, that at the time this doctrine was laid down, customs were looked upon with disfavour, as being *encroachments on the common law. Later historical researches have shown, however, that instead of this being the case, these local customs are remnants of the older English tenures, which, though generally superseded by the feudal tenures introduced after the dominion of the Normans had become firmly established, yet remained in many places, probably in manors which instead of passing into the possession of Norman lords, remained in the hands of the English proprietors. These customs, therefore, are not merely the results of accident or caprice, but were originally founded on some general principle or rule of descent. I am, however, quite ready to admit that we ought not to extend a custom beyond what is shown to have actually taken place, except where very clear and cogent evidence enables us to see that the custom is based on a more extended principle. Thus, if there are only instances of the custom in the lineal course of descent, I agree that it should not thence be inferred that the custom extends to collaterals; or, vice versâ, where the custom is only proved in the case of collaterals. But where, as in this case, the proof of a customary course of descent, not only among lineal descendants but also among collaterals for two generations, leads legitimately to the conclusion that such mode of descent is based on a principle of universal application within the manor- -as here, that the youngest shall in all cases inherit instead of the eldest, the evidence ought, as it seems to me, to be carried to its legitimate consequences. [ *682 ] It is said, indeed, that custom, being no more than user, must necessarily be limited to the extent to which the use has been carried. I think this is too narrow a view of the subject. I agree that where the usage is confined to a single and specific instance, it would be improper to assume that it has a larger application; but where we find a variety of instances, all referable to a common principle, I think it would be illogical and unreasonable that the custom should be stated, not as involving that general principle, but as confined to the particular instances shown to have occurred. Thus, where, as in the present case, it is found that, not only among lineal descendants, but also among collaterals to the second and third generation, the youngest male is preferred to the eldest, I think the inference. ought necessarily to be drawn that the customary rule of descent was that the youngest male in whatsoever degree should inherit in preference to the eldest. Nor am I at all embarrassed by the circumstance that in the records of this manor no instance of the youngest son of a youngest grand-uncle (which is the present case) has ever been admitted. v. BARNETT. A long series of genera- MUGGLETON tions might pass away before such a case would arise. In the great majority of instances estates are transmitted in the lineal. course of descent. When that line sometimes fails, they go to brothers or to brothers' children; more rarely to an uncle or an uncle's children; and in but a few rare instances to a granduncle or the children of a grand-uncle. One can easily understand, therefore, that in the generations which have passed since the records of this manor have been preserved, no instance of such a succession may have arisen; but we must not forget that these ancient tenures, in all human probability, existed long before the period since which these manorial records have been preserved. They must have had some principle or rule as their origin and foundation; and when, as in this case, the instances which are proved enable us to discover a plain and intelligible rule, I think we should not hesitate to apply it, although the particular instance with which we are dealing may not be shown to have occurred. A very striking illustration is afforded by the case now before us of the inconvenience which would follow from the adoption *of a different rule. The case states an instance of the admission of the youngest son of the youngest uncle of the person last seised; but there is no instance of the admission of a youngest uncle. Now, if the rule contended for on the authority of Ratcliffe v. Chaplin and Denn v. Spray were to prevail, this extraordinary anomaly would arise, that while the son of the youngest uncle could inherit, the uncle himself, though nearer in degree, could not: a consequence so obviously absurd as forcibly to illustrate the unsoundness of the doctrine from which it would spring. Again, in this very case there is no instance of the admission of a youngest grandson; yet surely no one, in the face of the several instances in which it is here admitted that the custom has extended to collaterals, could bring himself to doubt that upon this evidence the custom must be held to extend to a youngest son of a youngest son deceased, as it would have descended to the youngest son if living. On a careful consideration of this case and on the grounds I have stated, I am of opinion that the judgment of the Court of Exchequer should be reversed, and judgment given for the plaintiff. Judgment affirmed. [ *683 ] 1857. Nor. 27. [ 684 ] [ *685 ] PRESTON v. TAMPLIN AND HOLMES. (2 H. & N. 684--686; S. C. 27 L. J. Ex. 192; 3 Jur. N. S. 1247.) H., being the owner of a steam vessel, sold 32-64th shares in her to M'C. & Co., and agreed that they should have "the full and exclusive direction, management and control of the said vessel, to be dealt with and managed by them, as managing owners and ship's basbands, as they might think best, without any let or hindrance of the said H.; and, as such managing owners and ship's husbands, should have 5 per cent. on the gross earnings, to be made or produced in any employment or service in which the vessel might be engaged by them; and further, that M'C. & Co. shall from henceforth be and become the managing and the exclusive owners, for the purpose of employing the said vessel in any service they may think fit. It being part of this agreement that MC. & Co. were to pay to H. 9007. as a charter for his 32-64th shares for the first six months, for which sum M'C. & Co. were to have the entire use and control of the steamer and all her earnings for that period." Repairs having become necessary during the continuance of this charter: Held, by the Court of Exchequer Chamber (affirming the judgment of the Court of Exchequer), that under the agreement MC. & Co. had power, as ship's husbands, to bind H. by contracts for such repairs: and that such repairs having been done, H. was liable for the price to the persons employed by M'C. & Co. as agents for the parties liable. THIS was an appeal from the decision of the Court of Exchequer in discharging a rule to enter a nonsuit. The facts and judgment of the COURT are reported ante, p. 591 (2 H. & N. 363). Manisty (1) argued for the appellant (the defendant There was no evidence that Holmes contracted or authorized M'Clune and Tamplin to contract for him. The provision in the agreement that M'Clune and Tamplin were, as managing owners, to be paid a commission of 5l. per cent. on the gross earnings, shows that the clause appointing them managing owners was to apply only at a time different from that mentioned in the last paragraph, when they were to pay 9001. for the exclusive use of the vessel. Taking the two clauses together, and giving effect to the whole of the agreement, it appears that they were to be managing owners from the time when the ship became *the joint property of the defendant Holmes and themselves, with the exception of six months, during which they were to have the entire control of the ship. During the six months Holmes had no interest in the ship or its working. One joint owner who gives up to another joint owner all interest in the vessel, and all control over her, is not liable upon the contract of such joint owner. M'Clune and Tamplin were not managing for the defendant Holmes; Holmes had leased the vessel to them. For six months, and during that period, M'Clune and Tamplin were the entire (1) Before Coleridge, J., Erle, J., Cresswell, J., Williams, J., Crompton, J., Crowder, J., and Willes, J. owners of the ship. A master appointed by them could not have been Holmes's master, so as to make Holmes responsible for his misconduct. (WILLES, J.: The agreement provides that M'Clune and Tamplin "shall henceforth be and become the managing and exclusive owners." J. Holmes was never at any time to have any voice in the management of the ship.) Milward, for the respondent, was not called upon. COLERIDGE, J.: We are all of opinion that the judgment of the Court of Exchequer must be affirmed. If the case rested upon the first clause, it would be clear: "In consideration of the purchase by T. M'Clune and F. A. Tamplin, J. N. Holmes hath agreed with them that they should have the full and exclusive direction, management and control of the steam vessel Rose, to be dealt. with and managed by them as managing owners and ship's husbands, as they might think best, without any let or hindrance of the said J. N. Holmes, &c.; and further, that T. M'Clune and F. A. Tamplin shall henceforth be and become the managing and exclusive owners for the purpose of employing the said vessel in any service they may think fit, and as such be entitled to deduct, and take by way of commission, the commission or remuneration of 5l. per cent." &c. M'Clune and Tamplin would have had the power as managing owners to bind the defendant for these repairs, and whether the persons dealing with them knew anything of the defendant would be immaterial. But it is said that the last clause suspends the operation of the former clause. We think it has not that effect; that it is merely subordinate, and amounts only to a liquidation of the proportion of profit to be paid to Holmes for the use of the vessel during the six months; and that it does not alter the situation of the parties with reference to each other, created by the former stipulations. Judgment affirmed. IN THE COURT OF EXCHEQUER. POOLE v. THE NATIONAL PROVINCIAL LIFE (2 H. & N. 687-692; S. C. 27 L. J. Ex. 219 4 Jur. N. S. 54.) PRESTON v. TAMPLIN. [ *686 ] 1858. Jan. 15. R.R.--VOL. CXV. 48 1858. 1858. Jan. 20. [ 703 ] McMANUS v. THE LANCASHIRE AND YORKSHIRE (2 H. & N. 693 -702; S. C. 27 L. J. Ex. 201; 4 Jur. N. S. 144. CASANDRA WILBY . THE WEST CORNWALL (2 H. & N. 703–712; S. C. 27 L. J. Ex. 181; 4 Jur. N. S. 284; 6 W. R. 225; A parcel was delivered at Penzance, to the West Cornwall Railway Company, addressed to a person at Wolverhampton, "per first steamer from Hayle." The Company's railway only extends from Penzance to Truro; but their practice is to send goods for Bristol, or places above it, to a seaport called Hayle, and there deliver them to the steamboats; and to send parcels for Bristol, or places above it to Truro and there deliver them to other carriers, who carry them from Truro to Plymouth (for which distance there is no railway), and from Plymouth they are sent by railway to Wolverhampton. The Company carried the parcel by their railway to Hayle, where they delivered it to a steamboat, by which it was conveyed to Bristol and from thence by railway to Wolverhampton. The goods in the parcel having been damaged after the delivery to the steamboat: Held, that, under these circumstances, a jury might infer a contract by the Company, as common carriers, to carry the whole distance from Penzance to Wolverhampton; and, consequently, that they were liable for the damage to the goods. Also, that it is not ultra vires for the Company to carry beyond their own line by sea or by coach. THIS cause came on for trial before Crowder, J., at the Gloucestershire Spring Assizes, 1857, when a verdict was taken for the plaintiff, subject to the following case: The declaration stated that the plaintiff, on the 29th September, 1856, delivered to the defendants, as and being common carriers of goods for hire, and they, as and being such carriers, received from the plaintiff two cases of goods of the plaintiff's, to be safely and securely carried and conveyed by the defendants for the plaintiff, to wit, from Penzance in Cornwall to Wolverhampton in Staffordshire, and there safely and securely to be delivered by the defendants to the plaintiff, for reward to the defendants in that behalf: Yet the defendants, whilst they had the said cases of goods for the purpose aforesaid, did not take due and proper care of the same, but neglected to do so; and so carelessly, negligently, and improperly carried and delivered the same, and took so little and such bad care thereof, that by the carelessness, negligence, and improper conduct of the defendants in that behalf, divers of the goods became and were broken, damaged, and destroyed. There was a second count similar to the first, except that it related to three cases of goods delivered to the defendants on the 4th of October, 1856. The pleas were, first: That the plaintiff did not deliver, nor |