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Le Report del Case argue en le commen Banke devant touts les Justices de mesme le Banke, en le quart an du raygne de Roy Jacques, entre Matthew Stradling, Plant. et Peter Styles, Def. en un Action propter certos Equos coloratos, Anglicè, Pred Horses, post. per le dit Matthew vers le dit
Le recitel SJR John Swale, of Swale-Hall, in Swale del Case. Dale, fast by the River Swale, Rt. made his last Will and Testament: 3/n which, among other Bequests, was this, viz. Out of the kind Love and Respect that I bear unto my much honoured and good Friend Mr. Matthew Stradling, Gent. I do bequeath unto the said Matthew Stradling, Gent, all my black and white Horses. The Testator had sir black Horses, six white horses, and siç pred horses.
The Debate therefore was, whether or no Le Point. the said Matthew Stradling should have the said pyed Horses by Virtue of the said Bequest.
a This humourous report was written by Mr. Fortescue.
Atkins Apprentice pour le Pl. apoy semble Pour le Pl. que le Pl. recovera.
And first of all it seemeth expedient to consider what is the Nature of Horses, and also what is the Nature of Colours ; and so the argument will cons sequently divide itself in a twofold way, that is to cay, the Formal Part, and Substantial Part. Horses are the Substantial Part, or thing bequeathed : Black and White the Formal or descriptive Part.
Horse, in a physical Sense, doth import a certain Quadrupede or four-footed Animal, which, by the apt and regular Disposition of certain proper and convenient Parts, is adapted, fitted and constituted for the use and need of man. Vea, so necessary and conducive was this Animal conceived to be to the Behoof of the Commonweal, that sundry and divers acts of Parliament have, from time to time, been made in favour of Horses.
ist Edward VI. makes the transporting of Horses out of the Kingdom no less a penalty than the Kors feiture of 401.
2d and 3d Edward VI. Takes from Horse-stealers the Benefit of their Clergy.
And the Statutes of the 27th and 22d of Hen. VIII. condescend so far as to take care of their bery Breed: These our wise Ancestors prudently foreseeing, that they could not better take care of their own posterity, than by also taking care of that of their Horses.
And of so great Esteem are Horses in the Eye of the Common Law, that when a Knight of the Bath coms mitteth ang great and enormous Crime, his Punishment is to have his Spurs chopt off with a Cleaver, being, as Master Bracton well observety, unworthy to ride ón a Horse.
Littleton, Sect. 315. Caith, 3f Tenants in Com. mon make a Lease reserving for Rent a Horse, they shall have but one Assize, because, saith the Book, the Law will not suffer a Horse to be severed: Another Argument of what high Estimation the Law maketh of an Horse.
But as the great Difference seemeth not to be so much touching the substantial part, Horses, let us pros ceed to the formal or descriptive Part, viz. adibat horses they are that come within this Bequest.
Colours are commonly of various Kinds and different Sorts; of which White and Black are the two Ertremes, and consequently comprehend within them all other Colours whatsoever.
by a Bequest therefore of black and white Horses, grey or pyed Horses may well pass ; for when two Extremes, or remotest Ends of any thing are deviled, the Law, by common Intendment, will intend whatso. ever is contained between them to be devised too.
But the present Case is still stronger, coming not only within the Jntendment, but also the very Letter of the Walords.
By the adord Black, all the Horses that are Black are devised ; By the Word White, are Devised those that are White ; and by the same words, with the Conjunction copulative, And, between them, the Horses that are Black and White, that is to say, Pyed, are devised also.
adihatever is Black and White is Pyed, and whatever is Pyed is Black and White ; ergo, Black and White is Pyed, and, vice versa, Pyed is Black and White.
Jf therefore Black and White Horses are devised, Pyed Horses shall pass by such Devise ; but Black
and White Horses are devised ; ergo the Pl. shall have the Pyed Horses. Pour le Catlyne Serjeant, Apoy semble al contrary, Defend. The plaintiff shall not have the Pyed Horses by Intendment; for if by the Devise of Black and White Horses, not only Black and Whihite Horses, but horses of any Colour between these two Extremes, may pass, then not only Pyed and Grey Horses, but also Red or Bay Horses would pass likewise, which would be absurd, and against Reason. and this is another strong argument in Law, Nihil quod est contra rationem, est licitum; for Reason is the Life of the Law, nay, the Common Law is nothing but Reason; which is to be understood of artificial Perfection and Reason gotten by long Study and not of Man's natural Reason ; for nemo nascitur Artifex, and Legal Reason est summa ratio ; and therefore if all the Reason that is dispersed into so many different Heads, were united into one, he could not make such a Law as the Law of England ; bes cause by many Successions of Ages it has been fired and refired by grave and learned wen; so that the old Rule may be verified in it, Néminem oportet esse legibus sapientiorem.
As therefore pyed Horses do not come within the Jntendment of the Bequest, so neither do they within the Letter of the acordø.
a pyed Horse is not a white Horse, neither is a pyed a black Horse; how then can pyed Horses come under the words of black and white Horses?
Besides, where Custom hath adapted a certain determinate Name to any one thing, in all Devises, Feofments, and Grants, that certain name shall be made use of, and no uncertain circumlocutory Descriptions shall be allowed; for certainty is the father of Right, and the mother of Justice.