[Recited in the character of Counsellor Quirk.]
Farmer A. and Farmer B. were good neighbors. Farmer A. was seized or
possessed of a white bull; Farmer B. was seized or possessed of, or
otherwise well entitled to, a ferry-boat. Farmer B. having made his
boat fast to a post on shore, by means of a piece of hay, twisted
rope-fashion, or, as we say, _vulgato vocto_, a hayband, went up to
town to get his dinner, which was also very natural for a hungry man
to do. In the mean time Farmer A.'s white bull came down to the town
to look for his dinner, which was also very natural for a hungry bull
to do; the said white bull, discovering, seeing, and spying out, some
turnips in the bottom of the ferry-boat, the bull scrambled into the
ferry-boat aforesaid, eat up the turnips, and, to make an end of his
meal, fell to work upon the hay-band. The ferry-boat being ate from
its moorings, floated down the river with the white bull in it: it
struck against a rock, which beat a hole in the bottom of the boat,
and tossed the bull overboard; whereupon, the owner of the bull
brought his action against the boat, for running away with the bull.
The owner of the boat brought his action against the bull, for running
away with the boat; and thus notice of the trial was given, Bullum
_versus_ Boatum--Boatum _versus_ Bullum. Now the counsel for the bull
began with saying: "Your Honor, and you, Gentlemen of the Jury, we
are counsel in this cause for the bull. We are indicted for running
away with the boat. Now, your Honor, your Honor may have heard of
running horses, but never of running bulls before. Now, your Honor,
I humbly submit to your Honor, the bull could no more have run away
with the boat, than a man in a coach may be said to run away with
the horses; therefore, your Honor, how can an action be maintained
against that which is not actionable? How can we punish what is not
punishable? How can we eat what is not eatable? Or, how can we drink
what is not drinkable? Or, as the law says, how can we think on what
is not thinkable? Therefore, your Honor, as we are counsel in this
cause for the bull, if the jury should bring the bull in guilty, the
jury will be guilty of a bull." The learned counsel for the boat, in
the cross-action of Bullum _versus_ Boatum, observed, that the bull
should be nonsuited, because, in his declaration, he had omitted to
state or specify what color he was; for thus wisely and thus learnedly
spoke the counsel: "My Lord, if the bull was of no color he must be of
some color; and if he was not of any color, what color could the bull
be?" I overruled this motion myself, by observing the bull was a white
bull, and that white is no color: besides, as I told my brethren,
they should not trouble their heads to talk of color in the law, for
the law can color any thing. The cause being afterwards left to a
reference, upon the award, both bull and boat were acquitted, it being
proved that the tide of the river carried them both away; upon which
I gave it, as my opinion, that as the tide of the river carried both
bull and boat away, both bull and boat had a good action against the
water-bailiff. My opinion being taken, an action was issued, and, upon
the traverse, this point of law arose: how, wherefore, and whether,
why, when, and whatsoever, whereas, and whereby, as the boat was not
a _compos mentis_ evidence, how could an oath be administered? That
point was soon settled by Boatum's attorney declaring, that for his
client he would swear any thing. The water-bailiff's charter was then
read, taken out of the original law Latin, which set forth in their
declaration, that they were carried away either by the tide of flood,
or the tide of ebb, the charter of the water-bailiff was as follows:
Aquæ bailiffi est magistratus in choisi, sapor omnibus, fishibus,
qui haberunt finnos et scalos, claws, shells, et talos, qui surmare
in freshibus, vel saltibus riveris, lakos, pondis, canalibus et well
boats, sive oysteri, shrimpini, catinos, sturgeoni, shadini, herringi,
crabi, snaperini, flatini, sharkus; that is, not flat-fish alone, but
flats and sharps both together. But now comes the nicety of the law,
the law is as nice as a new-laid egg, and not to be understood by
addle-headed people. Bullum and Boatum mentioned both ebb and flood
to avoid quibbling, but it being proved that they were carried away,
neither by the flood, nor by the tide of ebb, but exactly upon the
top of high water, they were consequently nonsuited; but such was the
lenity and perfection of our laws, that upon their paying all the
costs, they were allowed to begin again, _de novo_.