The Teftator had fir black Hozses, fir white Hopfes, and fir pred Horses.

The Debate therefore was. Whe

Le Point. ther de no the faid Matthew Stradling Thould have the said pped Hozses by Dir

tue of the said Bequest.

Pour le Pl.

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

And first of all it seemeth expedient to consider what is the Nature of Horfes, and also what is the Nature of Colours; and fo the Argument will consequently divide itself in a twofold way, that is to fay, the Formal Part and Subftantial Part. Horfes are the Substantial Part, oz thing bequeathed : Black and White the Formal o2 descriptive 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 Use and Need of Man. Hea, so neceslary and conducive was this Animal conceived to be to the Behoof of the Commonweal, that sundry and divers Acts of Parliament have from time to time been made in Favour of Horses.

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

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

And the Statutes of the 27th and 32d of Hen. VILI. condescend so far as to take Care of their bern Breed: These our wise Ancesto2s prudently fozefecing, that they could not better take care of their own Pofterity, than by also taking care of that of their Horses.

And of so great esteem are Horfes in the Eye of the Common Law, that when a Knight of the Bath committeth any great and enormous Crime, his Punishment is to have his Spurs choft off with a Clever, being, as after Bracton well observeth, anworthy to ride on a Horse.

*

Littleton, Sec. 315. faith, If Tenants in Com mon make a Lease reserving foz Rent a Horfe, then thall have but one Assize, because, 'faid the Book, the Law will not suffer a Horfe to be fevered. Another Argument of what high Estimation the Lam maketh of an hose.

But as the great difference seemeth not to be so much touching the substantial Part, Horses, let us proceed to the formal oz descriptive Part, viz. What Hoses they are that come within this Bequest.

Colours are commonly of various Kinds and dif ferent Sorts; of which Waite and Black are the

two Extremes, and consequently 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 devised, the Law, by common Intendment, will intend whatsoever is contained between them to be devised fo.

But the present Case is still stronger, coming not only within the Intendment, but also the very Letter of the Wozds.

By the Wozd Black, all the Hozses that are black are devised; by the word White, are devised those that are White; and by the same Wozd, with the Conjunction Copulative, And, between them, the Horfes that are Black and White, that is to sap, Pyed, are devised alfo.

Whatever is Black and White is Pyed, and whatever is Pyed is Black and White; ergo, Black and White is Pyed, and, vice verfa, Pyed is Black and White.

Aftherefoze Black and White Horfes are devised, Pyed Horfes fhall pafs by fuch Devife; but Black and White Horses are devifed; ergo, the Pl. fhall have the Pyed Horfes.

Pour le

Catlyne Serjeant, Monsemble al' conDefend, trary, The Plaintiff shall not have the Pyed Horfes by Intendment; for if by the devise of Black and White Horses, not only black and white Bosses, but Hozses of any Colour, between these two Extremes may pass, then not only Pyed and Grey Horses, but also Red or Bay Horfes would pafs likewise, which would be abfurd, and against Reason. And this is another strong argument in Law, Nibil, quod eft contra rationem, eft 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; fog nemo nafcitur artifex, and legal Reason eft fumma ratio; and therefaze 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 effe legibus fapientiorem.

As therefore pyed Horfes do not come within the Intendment of the Bequest, so neither do thep within the Letter of the Wods.

pyed Horfe is not a white Horse, neither is a pyed a black Horse; how then tan pyed Horfes come under the words of black and white Horfes ?

Besides, where Custom hath adapted a certain determinate Dame to any one thing, in all t vises, Feofments. and Grants, that certain Name fhall be made use of, and no uncertain circumlocutory Descriptions fhall be allowed; foz Certainty is the Father of Hight, and the Mother of Justice. Le reste dele Argument jeo ne pouvois oyer, car jeo fui disturb en mon place.

Le Court fuit longement en doubt de c'est Matter et apzes grand deliberation eu, Judgment fuit donne pour le Pl. nifi caufa. Motion in Arreft of Judgment. that the pyed Horfes were Mares; and thereupon an Infpection was prayed.