case randall against jenkins car roll if a rend be grant out of gavel kind  land to a man and his heir it shall descend to all the son or brother accord  to the descent of the land and not go to the heir at commonlaw for the rend  issue out and be part of the profit of the land S c keb S C lev S C Freem S C  Danv S c vern S p post S p salk Ro Abr Noy cro car cro James   light Hardres  side lev raym Mod Mod Mod ld ray Peer wms Peer wms Bac Abr see robin on  gavelkind term Rep replevin the defendant make conusance as bailiff to William  Jenkins for a rentcharge grant out of gavelkind land to a man and his heir the  question be whether this rend shall go to the heir at commonlaw or shall be  partible among all the son Hardres it shall go to the old son as heir at law  for I conceive it be by reason of a custom time out of mind use that land in  ken be partible among the male as appear by lambard in his perambulation of  ken a page a now this be a thing new create it want length of time to make it  descendible by custom a feoff in fee be make of gavelkind land upon condition  the condition shall go to the heir at commonlaw and not accord to the descent  of the land b Henry pl b if a warranty be annex to such land it shall descend  only upon the old son c Edward pl Edward pl   light cro James   c now this  rentcharge be a thing modern contrary to common right and de to make new  create be not modern er p apportionable d   light d it be not part of the land  for if a man levy a fine of the land it will not extinguish his rend unless by  agreement betwixt the party e brook Abr foe b pl e if there be a custom in a  particular place concern dower it will not extend to a rentcharge f   light f  there be no occasion in this case to make the rend descendible to all for the  land remain partible among the male accord to the custom and why a rend shall  go so to the prejudice of the heir I know not in the yearbook g Henry pl Henry  pi g it be say that a rend be a different and distinct thing from the land  then the language of the law speak for general heir who shall not be  disinherit by construction the grand objection be whether the rend shall not  follow the nature of the land Fitzherbert say he know four authority that it  shall h Fitzherbert Abr avowry h as for his first case I say that rend among  parceners be of another nature than this for that be distrainable of common  right as for the second I say the rule of it hold only in case of proceed and  trial which be not applicable to this custom his three case be that if two  coparceners make a feoff render rend and one die the rend shall not survive to  this I find no answer give the text of Littleton I   light a I be further  object where it be say that if land be devisable by custom a rend out of such  land may be devise by the same custom but authority clash in this point king    light III a style king he cite far these book lambard perambulation of ken the  yearbook Henry pl Henry pl and the case of Randall v Robert Noy den contra I  conceive this rend shall descend to all the brother for it be of the quality  of the land and part of the land it be contain in the bowel of the land and be  of the same nature with it as it be say by Thorpe justice in Zouches case ass  which I take to be a direct authority as well as a instance in some borough a  man may have devise his land by custom and in those place he may have devise a  rend out of it   Litt a the statute de good conditional bring in a new estate  of inheritance by way of entail now this estate tail in gavelkind land have be  take to descend to all the brother and the reason be because it be part of the  feesimple though create de to make new so use follow the nature of the land  the case that have be cite be modern not the opinion of the court but of they  that argue Mr lambard say that the custom extend to advowson commons  rentcharge as well as to land it be object that here must be a prescription I  answer gavelkind law be the law of ken and be never plead but presume Edward  pl   Litt Edward pl and   Litt say the custom of ken be of common right and if  so then our rentcharge will go of common right to all the brother hale chief  justice Rainsford and wile justice be of opinion that the rend ought to  descend to all the brother accord to the descent of the land because the rend  be part of the profit of the land and issue out of the land and they give  judgement accord