case clement versus Scudamour refer to in re smart Ch d salk Mod ld raym one  seize of a copyhold in fee in nature of boroughenglish have five son the young  of who die in the life of the father leave issue a daughter and then the  father die the young son daughter be inheritable the young son by  boroughenglish and his representative be as much heir to the boroughenglish  land as a old son or his representative be heir to land descendible at  commonlaw in ejectment the jury find this special verdict I S have issue five  son the young of which die in the lifetime of I S leave issue a daughter the  lessor of the plaintiff after which I S purchase the land in question which be  copyhold and of the nature of boroughenglish descendible by t custom to the  young son and his heir I S die seize and the four son enter upon which the  question be whether the four son or the daughter of the five son shall inherit  these land and after several argument at bar c I holt deliver the opinion of  the whole court in favour of the daughter videlicet that she ought to inherit  these land lure reprsentations wherever this custom have obtain the young son  be there place in the room of the old who inherit by the commonlaw and there  be no difference peer William in the course of descent but that the custom  prefer the young son and the commonlaw the old and therefore as by the  commonlaw the issue of the old son female as well as male do lure  reprsentations inherit before the other brother so by the same reason when  this custom have transfer the right of descent from the old to the young son  it shall also by the like representation carry it to the daughter peer William  er p of the young son and there be no ground to make any difference betwixt a  descent by this custom and by the commonlaw though Lord coke be of another  opinion yet it appear from the best author as larboards Saxon law inter law  guglielmi primi foe and Selden in eadm that all the land in England be at  first and before the conquest in nature of gavelkind vide ante Blackborough v  Davis and descend equal to all the issue but this be soon afterward alter when  tenor by knight service be introduce for the defence of the realm for then in  order the better to preserve the family and tenure the descent be restrain  only to the old son but yet notwithstanding this alteration the right of  representation continue to take place and by the commonlaw if the old son  happen to die in his father lifetime leave issue a daughter the inheritance  descend to her in preference to any of the other son so that the female by way  of representation be yet prefer to the male because the right of  representation be not alter this right of representation be not peculiar to  the law of England but have prevail by the law of other country as may be see  in Numb chap xxvi for and chap xxxvi hale hist of the Com law p for though by  the Jewish law the male inherit exclusive of the female and the old son have a  double portion of his father peer William S estate which be confine to he as  the first beget yet we find when Zelophehad the son of Hephir die leave no son  but daughter and the daughter come unto Moses claim the possession of their  father thisbeing a new case Moses be say to have bring their cause before the  Lord who command he to give they the possession of their father so that it be  here determine that they shall take the double portion that belong to their  father as the old son by right of representation so be Selden de succession at  Hebros cap the same law be part of the twelve table and from thence come to be  observe among the Roman and here in England the right of representation hold  as well in case of inheritance descendible by custom as by the commonlaw so in  the case of gavelkind land where the custom in plead be thus set out raze cust  a quod terr et tenement de tenure degavelkind de tempore c inter hredes male  partibilia et partita to be and yet if a man seize of gavelkind land have  issue three son one of which die in the life of his father leave issue a  daughter and afterward the father die there can be no doubt but that this  daughter shall inherit the purparty of her father though she be not within the  word of the custom sure that the land be partible inter hredes male but the  custom by construction shall extend to daughter jure reprsentationis and there  be no difference between the custom of gavelkind and this of boroughenglish  only in respect of the quantity of the land which the heir take there each son  take a equal part but here the young take the whole which will not vary the  reason in construction of the custom peer William the commonlaw take notice of  these custom of gavelkind and boroughenglish and there be a very remarkable  case adjudge in Lord Bridgmans time which be not report in any print book it  be in the year intrat hill rot c b inter a hale and this seem to be the same  case that be cite in keb under the name of pain v Herbert where the case be  that the copyhold land of every tenant die seize be by the custom of the manor  descendible to the young son and a surrender be make to the use of her and his  heir who die before admittance it be agree if b have be admit the young son  after his death shall have inherit but in regard b die before admittance the  question be between the old and young son of b who shall have the land and  adjudge that in this case the old son shall have the land because of the  straitness of the custom and there never have be any seize in the ancestor but  by my report it will have be otherwise have it be allege that the land be in  the nature of boroughenglish which it be not but only set forth as a  particular custom for the law take notice of the custom of boroughenglish but  not of this special custom which be likewise the reason why in plead that land  be of the nature of boroughenglish you need not set forth the nature of the  custom special this case seem at first to be against I but the reason of the  distinction there take be on my side in the present case the find of the  custom do not exclude the daughter but on the contrary express comprehend her  for it be find that peer William er p the land be descendible to the young son  and his heir though without that express mention of his heir the daughter  shall have inherit now this custom be not to peer William be take strict and  accord to the letter but shall receive such construction as may comprehend  necessary consequence and incident in 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 his young son and though the son die  before any entry yet without doubt the right will go to the daughter  notwithstanding the son can not be say to have die seize within the word of  the custom so in this case if a descent be cast the young son shall have his  age as much as if he be heir at 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 in the case of reeve v malster I roll Abr pl  Jones cro car the custom of the manor be that if any person die seize in  feesimple of land within the manor the same shall descend son younger man  hujusmodi to hold customarii such obient seisiti secundum naturan de  boroughenglish and a tenant of the manor be seize in fee surrender his land to  the use 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 son die in the  lifetime of the mother without issue and then the mother die upon which the  question be whether the old or middle son shall inherit the judge be thereupon  divide Berkeley and Branston hold that the middle son ought to have the land  but Jones and crook be of opinion for the old now I observe that there the  custom be more special than in our case it not be that if a man die seize  general the land shall descend to his young son but he die seize peer William  special sure in feesimple though in that case Jones and crook declare it as  their opinion that if the father have be seize and die the young son shall not  have inherit which make it seem less strange that they shall exclude the  middle son when the custom be so special for the father do not die seize of  the feesimple but of the reversion but let that case remain undecided the  custom there differ from we 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 who be  last seize and the daughter can make herself heir to the grandfather but in  answer to that it must be here intend that she be to make herself heir to he  who be last seize accord to the custom and if the custom extend to her she be  then heir to her father or grandfather last seize and as the daughter of the  old son at commonlaw jure reprsentations 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 v bullock roll Abr pl be a full authority for I  there the custom be that if a man die without heir male his old daughter shall  have his land and the tenant have no heir male but have issue several daughter  the old of who have issue a daughter and die in the lifetime of her father  adjudge 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 before the rest but all inherit equal yet  custom may give the peer William inheritance to the old daughter and then her  issue shall take it jure reprsentationis this be as strong as a descent in  boroughenglish but the case of sir John savage Leon be object and there the  custom be that if a man take to wife a customary tenant of the manor and have  issue and overlapped her he shall be tenant by the courtesy and one marry a  woman to who a customary tenement do descend during the coverture and have  issue and survive her yet it be 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 say the book be to be take strict  now admit that case to be law it do not affect we for there be a particular  custom give the estate to the husband under particular qualification 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 a descent only with the  difference as to the person this exposition of the custom will tend to quiet  and settle estate and title by introduce the same uniform rule of descent in  all case peer William er p whereas if Jones and croak opinion be to prevail it  can not but occasion uncertainty and consequent confusion judgement for the  plaintiff per tot cur memorandum upon the first argument both holt c I and  Powel I deny sir John savage case to be law peer William de term paschae