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cleaver, being, as master Bracton well observeth, unworthy to ride on a horse.
Littleton, Sect. 315. saith, If 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 extremes, and, consequently, comprehend within them all other colours whatsoever.
By a Bequest therefore of black and white horses, gray or pyed horses may well pass; for when two extremes, or remotest ends of any thing are devised, the law, by common intendment, 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 verp letter of the words.
By the word black, all the horses that are black are devised; bp the word white, are devised those that are white; and by the same word, with the conjunction copulative, and, between them, the horses that are black and white, that is to sap, pyed, are devised also.
Whatever 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.
If 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 defend.
Catlyne Serjeant: mop semble al' contrary, the plaintiff shall not have the pyed horses by intendment; for if bp the devise of black and white horses, not only black and white horses, but horses of any colour between these two extremes may pass, then not only pyed and gray 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, Nikil, quod est contra rationem, est licitum: for reason is the life of the law, nap 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; 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 intentment of the Eequest, 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 dei 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.