A

SPECIMEN

OF

SCRIBLERUS's REPORTS.

STRADLING verfus STILES.

Le report del cafe argue en le common banke devant toutes les juftices de mefme le banke, en le quart an du raygne de Roy Jacques, entre Matthew Stradling, Plant. et Peter Stiles, def. en un action propter certos equosc oloratos, Anglice Pyed Horfes, poft. per le dit Matthew vers le dit Peter.

Le recitel del cafe.

S'

IR John Swale of Swale-hall, in Swale-dale, faft by the river Swale, Kt. made his laft will and teftament: In which, among other bequeafts, 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 faid Matthew Stradling, Gent, all my black and white horses. The teftator had fix black horfes, fix white horses, and fix pyed horfes.

Le point.

The debate therefore was, Whether or no the faid Matthew Stradling should

have

have the faid pyed horfes by virtue of the faid bequeast.

Atkins apprentice pour le Pl. moy Pour le Pl. fémble que le Pl. recovera,

And, first of all, it feemeth expedient to confider, what is the nature of horses, and alfo what is the nature of colours; and fo the argument will confequently divide itself in a twofold way, that is to say, the formal part, and subftantial part. Horfes are the fubftantial part, or thing bequeathed; black and white the formal or defcriptive part.

Horse, in a physical sense, doth import a certain quadrupede or four-footed animal, which, by the apt and regular difpofition of certain proper and convenient parts, is adapted, fitted, and conftituted for the ufe and need of man. Yea, fo neceffary and conducive was this animal conceived to be to the behoof of the commonweal, that fundry and divers acts of parliament have, from time to time, been made in favour of horses.

ift Edw. VI. makes the tranfporting of horfes out of the kingdom no less a penalty than the forfeiture of 401.

2d and 3d Edw. VI. takes from horse-stealers the benefit of their clergy.

And the ftatutes of the 27th and 32 of Henry VIII. condefcend fo far as to take care of their very breed. These our wife ancestors prudently forefeeing, that they could not better take care of their own pofterity, than by alío taking care of that of their horses.

1

eye

of

And of fo great esteem are horses in the the common law, that when a Knight of the Bath committeth any great and enormous crime, his pu13

nishment

nishment is to have his fpurs chopt off with a cleaver, being, as Mr Bracton well obferveth, unworthy to ride on a horse.

Littleton, fect. 315. faith, If tenants in common make a lease, reserving for rent a horfe, they fhall have but one affize, becaufe, faith the book, the law will not fuffer a horse to be fevered.* Another argument of what high estimation the law maketh of an horse.

But as the great difference feemeth not to be fo much touching the fubftantial part, horfes, let us proceed to the formal or defcriptive part, viz. What horses they are that come within this bequest.

Colours are commonly of various kinds and different forts; of which white and black are the two extremes, and confequently comprehend within them all other colours whatsoever.

By a bequeast therefore of black and white horfes, grey or pyed horses may well pafs; for when two extremes, or remoteft ends of any thing are devised, the law, by common intendment, will intend whatsoever is contained between them to be devised too.

But the prefent cafe is still stronger, coming not only within the intendment, but alfo the very letter of the words.

By the word black, all the horses that are black are devised; by the word white, are devised those that are white; and by the fame word, with the conjuction copulative and between them, the horfes that are black and white, that is to fay, pyed, are devised also.

Whatever is black and white is pyed; and

whatever

whatever is pyed is black and white; ergo, black and white is pyed, and, vice verfa, pyed is black and white.

If therefore black and white horses are devised, pyed horfes fhall pafs by fuch devife; but black and white horses are devised; ergo, the Pl. fhall have the pyed horses.

Catlyne Serjeant. Moy femble al' con- Pour le trary, The plaintiff fhall not have the pyed Defend. horfes by intendment; for if by the devife of black and white horfes, not only black and white horfes, but horfes of any colour between these two extremes may pafs, then not only pyed and gray horses, but also red or bay horses would pafs likewife, which would be abfurd, and against reason. And this is another ftrong argument in law, Nihil, quod eft contra rationem, eft licitum ; for reafon is the life of the law, nay, the common law is nothing but reafon; which is to be underflood of artificial perfection and reafon gotten by long ftudy, and not of man's natural reafon; for, nemo nafcitur artifex, and legal reason eft fumma ratio; and therefore if all the reafon that is difperfed into fo many different heads were united into one, he could not make fuch a law as the law of England; because by many fucceffions of ages it has been fixed and refixed by grave and learned men; fo that the old rule may be verified in it, Neminem opportet effe legibus fapientiorum.

As therefore pyed horfes do not come within the intendment of the bequeaft, fo neither do they within the letter of the words.

A pyed horfe is not a white horse, neither is a

pyed

pyed a black horfe; how then can pyed horfes come under the words of black and white horses?

Befides, where custom hath adapted a certain determinate name to any one thing, in all devifes, feofments, and grants, that certain name shall be made ufe of, and no uncertain circumlocutory defcriptions fhall be allowed; for certainty is the father of right, and the mother of justice.

Le refte del argument jeo ne pouvois oyer, car jeo fui disturb en mon place.

Le court fuit longement en doubt, de c'eft matter; et apres grand deliberation eu,

Judgment fuit donne pour le Pl. nifi caufa. Motion in arrest of judgment, that the pyed horfes were mares; and thereupon an inspection was prayed.

Et fur ceo le Court advifare vult.

ME