clement vers Scudamour Intr hill will b r rot refer to rider v wood king I in  re smart Ch d SC salk Mod holt p wms where land will at commonlaw descend to  the issue of the old son jure representationis they will by the custom of  borough English descend upon the issue of the young a descendible freehold  create in boro English land will descend as a estate in fee will in ejectment  the jury find this special verdict that I S have issue five son his young son  die in the life of I S the father leave issue a daughter who be the lessor of  the plaintiff afterward the father purchase the land in question which be  copyhold land of the nature of borough English and the jury find that by the  custom these land be descendible to the young son and his heir afterward the  father die and the old son enter and make a lease to the defendant upon who  the daughter enter and make the lease to the plaintiff upon who the defendant  reenter whereupon the plaintiff bring his ejectment this case be twice argue  at bar and this term by the opinion of the whole court judgement be give for  the plaintiff holt chief justice deliver the reason of their opinion as follow  the question in this case be whether the daughter of the young son the lessor  of the plaintiff shall inherit to these land jure repraesentationis or the old  son we be all of opinion that the daughter ought to have these land jure  repraesentationis wherever this custom have obtain the young son be thereby  place in the room of the old son who inherit by the commonlaw and there be no  other difference in the course of descent but that the custom prefer the young  son and the commonlaw the old son and therefore as at the commonlaw the issue  of the old son female as well as male do inherit jure repraesentationis before  the other brother so by the same reason where this custom have transfer the  right of descent from the old son to the young it shall also carry it to the  daughter of the young son by like representation and there be no reason to  make any difference between a descent by this custom and at commonlaw though  my Lord coke be of another opinion yet it appear from the best author as  lambard Saxon law inter law guglielmi primi fol and seldom eadm that all the  land in England be of the nature of gavelkind and descend equal to all the  issue before the conquest but this be soon after alter when tenor by knight  service be Lord Raymond introduce for the defence of the realm and then for  the preservation of the family and tenure the descent be restrain only to the  old son but yet notwithstanding this alteration the right of representation do  continue to hold place and by the commonlaw if the old son happen to die live  his father leave issue a daughter the inheritance descend to her before any of  the other son so that a female by way of representation be yet prefer before  the male because the right of representation be not alter this right of  representation be not peculiar to the law of England but be observe by the law  of all country as you may see in number c v and c for although by the Jewish  law the male inherit exclusive of the female and the old son have a double  portion of his father estate which be confer on he as the first beget yet we  find when Zelophehad the son of hepher die leave no son but daughter and the  daughter come unto Moses and claim the possession of their father this be a  new case Moses it be say bring that cause before the Lord who command he to  give unto they the possession of their father so that it be here determine  that they shall take the double portion belong to their father as the old son  by right of representation so be Selden de successionibus at hebraeos c this  right of representation be also practice among the Roman and be the law of the  twelve table and this right of representation hold in inheritance descendible  by custom as well as by common Lord Raymond er p law as in case of gavelkind  land where the custom in plead be thus set out raze custom a quod terrae et  tenement de tenure de gavelkind de tempore c inter haeredes male partibilia et  partita to be and yet if a man seize of gavelkind land have issue three son  and one of the son die in the life of his father leave issue a daughter and  afterward the father die no doubt but this daughter shall inherit the purparty  of her father though she be not within the word of the custom videlicet that  the land be partible inter haeredes male but the custom by construction shall  extend to daughter jure repraesentationis and there be no difference between  the custom of gavelkind and this custom of borough English only in respect of  the quantity of the land which the heir take there each son take and equal  part but here the young son take the whole but that will not vary the reason  in construction of the custom the commonlaw take notice of these custom of  gavelkind and borough English and there be a very remarkable case adjudge in  my Lord Bridgmans time which be not report in any print book it be in the year  and it be enter hill rot c b in it hale and Cit keb b there the case be that  copyhold land of every tenant die seize be descendible by the custom of the  manor to the young son and a sur Lord Raymond render be make to the use of b  and his heir who die before admittance if b have be admit it be agree that  after his death the young son shall have inherit but die before admittance the  question be between the old son and young son of b who shall have the land and  it be adjudge that the old son in this case shall inherit because of the  straitness of the custom that the land shall descend and so here be no estate  in the ancestor to descend there never be any seize in the ancestor but by my  report it will have be otherwise if it have be allege that the land be of the  nature of borough English which it be not but only set forth as a particular  custom because the law take notice of the custom of borough English but not of  that special custom and in plead that land be of the nature of borough English  you need not set forth the custom special for that reason this case seem at  first to be against I but the reason of the distinction there take make for I  in the present case the find of the custom do not exclude the daughter but do  express comprehend her for it be find that the land be descendible to the  young son and his heir though without that express mention of his heir the  daughter shall inherit now this custom be not to be strict take accord to the  letter but must be construe so as to comprehend the necessary consequence and  incident in the course of descent and therefore though the father be seize and  die so that he be not seize at the time of his death yet the right of entry  shall descend to the young son and although the son shall die before any entry  yet without doubt the right shall go to the daughter although the sondid not  die seize within the word of the custom and in this case if a descent be cast  the young son shall have his age as much as if he be heir at the commonlaw and  there be no reason why the representative of the young son videlicet the  daughter shall not be include within the meaning of the custom see the case of  reeve and malster roll vin Danv pl W Jones cro car where the custom of the  manor be that if any person die seize in feesimple of land within the manor  that the same shall descend after his death son younger man hujusmodi to hold  customarii such obient seisiti secundum naturan de borough English land a  tenant of the manor be seize in fee surrender his land to the see of himself  and his wife and his heir afterward he have issue three son and die so seize  of the reversion and afterward the young soil die in the life of the wife  without issue and then the wife die and the question be whether the old or  middle son shall inherit and the judge be divide Berkley and Branston hold  that the middle son ought to have the land but Jones and croak hold that the  old son ought to inherit now I observe first that Lord Raymond there the  custom be more special than in our case for there it be not that if a man die  seize general that the land shall descend to his young son but if he die seize  special videlicet in feesimple and yet in that case Jones and croak hold that  the descent of the reversion to the young son have satisfy the custom it be  object by Mr wield who argue on the part of the defendant that whoever take by  descent must make himself heir to he that be last actual seize Lord Raymond er  p but the father be never seize and the daughter can make herself heir to the  grandfather but in answer to that it must be intend in this case that she must  make herself heir to he that be last seize accord to the custom and if the  custom extend to representative then she be heir to her grandfather who be  last seize as the daughter of the old son at the commonlaw jure  repraesentationis make herself heir to her grandfather so the daughter of the  young son here make herself heir to her grandfather by the custom the case of  Godfrey and bullock roll d be a full authority for I there the custom be that  if a man die without issue male that his old daughter shall have his land and  the tenant bad no issue male but bad issue several daughter the old daughter  have issue a daughter and die in the life of her father this granddaughter be  within the custom and shall have the land by descent upon the death of the  grandfather now by the commonlaw the old daughter have not the preference of  the rest but all inherit equal yet custom may give the inheritance to the old  daughter and then her issue shall take it jure repraesentationis this be as  strong as a descent in borough English but the case of sir John savage in Leon  be object there the custom be that if any man take to wife a customary tenant  of the manor and have issue and overlived her he shall be tenant by the  courtesy a man marry a woman to who a customary tenement do descend during the  coverture and have issue and survive her yet it be there adjudge that he shall  not be tenant by the courtesy because the woman be not a customary tenant at  the time of the marriage and so not within the custom which shall be take  strict now admit that case to be law it do not affect the present case for  there be a particular custom which give the estate to the husband under  particular qualification but here the custom alter the descent by the  commonlaw to the old son and carry it to the young son general and must have  all the consequence of descent only with the difference of the person this  exposition of the custom will tend to quiet and settle estate and title in  borough English land whereas if the other opinion shall prevail it will  unsettle they but by this resolution they will be leave on certain and settle  foundation Lord Raymond judgement for the plaintiff per totan curian note upon  the first argument both holt and Powell deny sir John savage case Leon to be  law holt chief justice it be adjudge in this court in one townsend case that  where a lease be make to a man and his heir during three life of land in  borough English that the young son shall inherit the descendible freehold  though it be a new create estate because the custom be so annex to the land as  to affect that estate so if a rend be grant out of land of the nature of  gavelkind or borough English to a man and his heir it shall descend to the  young or all the son