New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1843-09-12
Voc. EHs. NO. 1873.

The. rps construction OF Parliamentary requests
! and devises has always beeen regarded as high
! ~ important, as well as delicate and dlfilcuit
,rancn Of the science of Law. The intention Of
the Testator not always appearing clear and OBJ.
yious in the Instrument, It became necessary, as
q matter of course, for Courts of Law to ix
upon some equitable general rules Of construction;
while certain restrictions upon transmission OF
property, as beng connected with the general po.
hey of our free institutions, rendered legislative
enactments equally obvious and necessary. With
in the last few years, by the decisions OF the Court
of Errors of the State OF New York several Wills
have been set aside, whereby the clear Intention
of the Testators in the disposition OF their estates
was frustrated, and some millions Of property d.
ver,ed in another direction from that which was
designated by the persons executing the Tesla
mentary Instrument. In fact, the conflicting
views Of counsel, and the ingenuity displayed IN
the arguments, as reported in the later volumes of
Wendell, do not only forcbly show the necessity
Of more certain and fixed rules OF construction
than have heretofore been laid downln the books,
but so clearly illustrate the fidelity OF Dr.. Ar
that we publish the case entire.
Sir JoHx swALE of swale.Hall in swaedae fast by the
River Swae k made his last VIII and Testament: IN
which, among other requests this viz Out of the klnd
and respect that bear much honored and good
friend Mr. Matthew Stradlng, gent do bequeah unto the
said Matthew StradnC all my black and white horses The
had six black horses SIX white horses and SIX pyed
horses.
The debate therefore was, whether or no the said Mat
thew sadng should have the said pyed horses by virtue
OF the said bequeS
Atkins apprentice pour e p moy sembe que lie p re-
coyera.
And first of all it seemeth eypedient consider '.ha,
the nature Of horses and also what the nature Of cooFS
and the argument will consequently divide lts IN Two
fold way that say the formal part and substantial part
Horses are substantial part thing bequeahed black and
white the formal or descriptive part.
Horses in physical sense doth spor certain quadu-
pede ourooed animal, which, by the apt aud regular
disposition Of proper and convenient pats adapted
fitted and constituted for the aud need OF man ca so
necessary and conducive this animal conceived TO be 70
the behoof Of the commoEwe that sundy and divers acts
Parliament have from time TO time been made IN favor Of
ist Edw VI Makes the transporting of horses Of the
kin gdom less penalty than the forfeiture OF 1lo
I'd and Sd Edward IL Takes IRON hoESesteaeFs te ose
And the statutes OF the 27th and 32d of Henry VIII
descend so far as take Of their breed hese our
pudeny ioeseeng that they coudnot better
take care Of their own p0,iery than by also taking care OF
that of their horses.
And Of so great esteem are horses the eye Of the Com
Law, that when Knight oil me Dam coHitteti any
great and enormous crime his punishment IS to have his
spurs chop off with cIeaye being master brac0n well
observeth unworthy 20 ride horse.
Lit,leou Sect. 35 Saith, if tenants IN common make
lease reserynC for rent horse they shall have but assLe,
because saith the book the law will suffer horse TO be
severed Another argument of what hsh estimation the law
maketh Of an horse.
But as the grea, difference seemeh not to be SO mnch
touching the substantial r horses let us proceed to the
formal descriptive part VIZ what horses they are a' come
within this bequest.
a1
Of which white and blsck the extremes aud conse
euen,y comprehend within them all other coors Whatsoever
b. beauest therefore Of black and white horses. grey or
pyed horses we'll pass for when i've extremes OF re-
hottest ends Of any thing devised the law by
ntendment will intend whatsoere! Is contained between
them TO be devised too.
But the present still stronger coming not only With
IN the ntendment but also The very letter of the words
By the word black all the horses that black devised
BY the word white devised those that whites. and py
the same word with the JUNCTION copulave, and be-
Them the horses that are black and white that - 10
say, pyed, are devised also.
Whatever black and white pyed and whatever itpyed
black and white ergo black and white pycd and rice
rsrsc, pyed is black and white.
If therefore black and white horses devised pyed
horses pass such deyse but black and white horses
are devised ergo, the p shall have the pyed horses
Calyne Sergeant moy semble al contrary the plaintiff
shall not have the pred horses by ntendmen for By the
devise Of black aud white horses only black and white
horses horses Of any color between these two extremes
pass then not only pyed and grey horses 5s a.o req
and against reason And this is another strong argument In
law, Mill quod est contra rattone est hcttu Tor reason
the life OF the law nay the common law nothing Eut
reason which be understood OF artificial reasons Tor
memo yseitur cr,tz, and legal Teason est unma roo;
and therefore if all the tina: dispersed into 50 many
deren. heads united into one, he could not make
such law as law of Engand because By May success
ages has been fixed and re1ed by and earn'
ed men, thar the old rule may be verified in 1t, Nsmr
oporiet ssse ieSibuS sdpenorem.
AS therefore pyd horses do not come within The intend.
neither letter
words.
A pyed horse is not white horse neither is pyrd
black horse how then pyed horses under the words
Of black and white horses:
Besides where hath adopted certain discriminate
name any thing all derses ftofmsnt, and grants
shall be made Of and no uncertain cII-
cumlocuorv descriptions shall be allowed; for certainty
the father OF right and the mother Of Justice.
lie del argument eo popvois oyer car Jso fa dii
turb en- place
lie ut longeneut doubt de dSt matter 81 aFei
grand elaboration gu,
Jndsemen, fuit donne pour lie pl nsi
Motion IN arrest Of judgement thatthe pyed horses eere
mares; and thererpon an inspection 1cdS prayed
Et sur Geo lie Court ad,lsaIe yult.
But to return to the book before us--It would
seem that work like the present was demanded
by the wants of the profession, and 50 far we
arc capable OF Judging, the author has ably per-
formed the difficult task which lay before him.
We commend 1t to gentlemen Of the profession.
A SAMPLE OF REPUpAroRs-We learn from
the Mississippi papers that youAg man of the
name of Brien, is candidate for the Legislature
of Mississippi, from Warren county, having been
invited to become candidate, IN an appeal made
to him by thirty-two of his tellow-citzens in for
NAL letter. The sgners of the letter are rcpudla-
tors, and some of them have pretended to be
Wings In this letter they complain of the grlev
80 t;n,oe which now keen down the prosDerity OF
the State. and they say for themselves, that the
taxes. ifncreased, WILDE entirely ruinous to them
The correspondence was published and the repu-
=. i. ..ol n-cl,nI nr