The Debate therefoze was, Whether Le Point. 02 no the faid Matthew Stradling should have the laid pped Hozles by Mirtue of

the faid Bequest.

Pour le Pl.

Atkins Apprentice pour le Pl. moy femble que le Pl. recovera.

And first of all it seemeth expedient to confider what is the Nature of Horfes, and alfo what is the Nature of Colours; and fo the argument will confequently divide itself in a twofold way, that is to fay, the Formal Part, and Subftantial Part. Horses are the Subftantial Part, 02 thing bequeathed: Black and White the Formal 02 defcriptive Part.

Horfe, in a phyfical 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. Bea, to neceflary and condurive was this animal conceived to be to the Behoof of the Common-weal, that fundry and dis vers as of Parliament have from time to time been made in Favour of Horses.

ift Edw. VI. Makes the Transporting of Horfes out of the kingdom, no less a Penalty than the Forfeiture of 40 1.

2d and 3d Edward VI. Takes from Horfe ftcalers the Benefit of their Clergy.

And the Statutes of the 27th and 32d of Hen. VIII. condefcand fo far as to take Care of their very Breed: Chefe our wife Ancestors prudently fores feeing, that they could not better take care of their plon pofterity, than by allo taking care of that of their Horfes.

and

And of fo great esteem are Horfes in the Eye of the Common Law, that when a Knight of the Bath committeth any great and enormous Crime, hist Punishment is to have his Spurs chopt off with a Cleaver, being, as after Bracton well obferveth,

unworthy to ride on a Horse.

Littleton, Sect. 315. faith, Jf Tenants in Com÷ mon make a Leafe referving for Rent a Horse, they shall have but one Alfize, becaufe, faith the Book, the Law will not suffer a Horfe to be fevered. Another Argument of what high Eftimation the Law maketh of an ozle.

But as the great difference feetneth not to be fo much touching the substantial Part, Horses, let us proceed to the formal oz descriptive Bart, viz. What Hozles 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 confequently comprehend within them all other Colours whatsoever.

By a Bequest therefore of black and white Horfes, grey or pyed Horfes may well pafs; for when two Extremes, oz remoteft Ends, of any thing are devis fed, the Law, by common Intendment, will intend whatsoever is contained between them to be devifed too.

But the present Cafe is fill fronger, coming not only within the Intendment, but also the very Letter of the Words.

By the logo Black, all the ozles that are black are devised; by the Mozd White, are deviled those that are White; and by the fame Wozd, with the Conjunction 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 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 Horfes are deviled, Pyed Horfes fhall pafs by fuch Devife; but Black and White Horfes are devifed; ergo, the Pl. fhall have the Pyed Horses.

Pour le
Defend.

Catlyne Serjeant, op femble al' contrary, The Plaintiff fhall not have the Pyed Horfes by Intendment; fog if by the Devife of Black and White Horfes, not only black and white ozles, but ozles of any Colour between these two Extremes may pals, then not only Pyed and Grey Horfes, but also Red or Bay Horfes would pass: likewife, which would be abfurd, and againft Reafon. And this is another strong argument in Law, Nihil, quod eft contra rationem, eft licitum ; fog Reafon is the Life of the Law, nay the common Law is nothing but Reafon; which is to be understood of artificial Perfection and Reafon gotten by long Study, and not of Man's natural Reafon; fo2 nemo nafcitur artifex, and legal Reafon eft fumma ratio; and therefore if all the Reaton 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 Succeffions of Ages, it has been fxed and

refired by grave and learned Men; so that the old Rule may be verified in it, Neminem oportet effe legibus fapientiorem.

As therefore Pyed Horfes do not come within the Intendment of the Bequest, fo neither do they within the Letter of the Words.

pyed Horfe is not a white Horfe, neither is a pyed a black Horse; how then can pyed Horfes come under the Wozds of black and white Horfes.

Befides, where Custom hath adapted a certain determinate Name to any one thing, in all Deviles, Feofments, and Gants, that certain Name fhall be made ufe of, and no uncertain circumlocutory Defcriptions fhall be allowed; fo2 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 cu,

Judgment fuit donne pour le 1. nifi caufa. Motion in Arreft of Judgment, that the pyed Horses were Mares; and thereupon an Inspection was prayed. Et fur ceo le Court advifare vult.

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