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STRADLING VERSUS STYLES.
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, Pyed Horses, post. per le dit Matthew vers le dit Peter.
Le recitel SIR John Swale, of Swale-Hall, in Swale del Case.
Dale, fast by the River Swale, Kt. made his last Will and Testament: En 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, sir white Horses, and sir pped Horses.
? This humorous report was written by Mr. Fortescue.—Warlon. Pope wrote the Law-case of the black and white horses, with the help of a Lawyer. By what he added, it was the late Master of the Rolls, Fortescue.-Spence's Anec. p. 145, Singer's Ed.
The Debate therefore was, whether or
no the said Matthew Stradling should have the said pyed Horses by Cirtue of the said Be: quest:
Pour le Pl.
Atkins Apprentice pour le Pl. Mop semble que le Pl. recobera.
And first of all it seemeth erpedient to consider what is the Nature of Horses, and also what is the Nature of Colours; and so the Argument will consequently divide itself in a twofold way, that is to say, 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 conducibe 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.
1st Edward VI. Makes the transporting of Horses out of the Kingdom no less a penalty than the Forfeiture of 401.
2nd and 3rd Edward VI. Takes from Horsestealers the Benefit of their Clergy.
And the Statutes of the 27th and 32nd of Hen. VIII. condescend so far as to take Care of their very Breed. These our wise Ancestors prudently fore: seeing, 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 committeth any great and enormous Crime, his Punishment is to have his Spurs chopt off with a Cleaver, being, as Master Bracton well observeth, unworthy to ride on a Horse.
Littleton, Sect. 315, saith, xf Tenants in Common 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 a Horse.
But as the great Difference seemeth not to be so much touching the substantial part, Horses, let us proceed to the formal or descriptive Part, viz. What 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 Ertremes, or remotest Ends, of anything are devised, the Law, by common Entendment, will intend whatsoever is contained between them to be devised too.
But the present Case is still stronger, coming not only within the Intendment, but also the very Letter of the words.
By the Word Black, all the Horses that are Black are devised; By the Word White, are de: vised 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.
Whatever is Black and White is Pyed, and what: eber is Pyed is Black and White; ergo, Black and White is Pyed, and, vice versa, Pyed is Black and White.
\f 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 bave the Pyed Horses.
Catlyne Serjeant, Moy semble al con:
trary, The Plaintiff shall not have the Pyed Horses by Intendment; for, if by the Devise of Black and White Horses, not only Black and White Horses, but Horses of any Colour, between these two Ertremes, 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 there: fore if all the Reason that is dispersed into so many different Heads, were united into one, he rould not make such a Law as the Law of England; because by many Successions of Ages it has been fired and refired by grave and learned Men; so that the old Rule may be verified in it, Neminem oportet esse legibus sapientiorem.
As therefore pyed Horses do not come within the Intendment of the Bequest, so neither do they within the Letter of the words.
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.
Le reste del Argument jeo ne pouvois oyer, car jeo fui disturb en mon place.
Le Court fuit longement en doubt de c'est Matter; et apres grand deliberation eu,
Judgment fuit donne pour le Pl. nisi causa.
Motion in Arrest of Judgment, that the pyed Horses were Mares; and thereupon an Inspection was prayed.
Et sur ceo le Court advisare vult.