'
"_Asseby_: 'Sir, he has brought a writ at common law; judgment if he
ought not to be answered at common law, and if he (the demandant) can
allege the custom.'
"_Sutton_: 'In many places in England a woman demands her dower by the
writ "Unde nihil habet," which is a writ at common law, and yet,
according to the custom of the country, she will recover for her dower a
moiety of the tenements which belonged to her husband, where by common
law she would have only the third part, and also in the case of
tenements in some countries which are holden by knight-service the lord
can avow the taking as good for cornage according to the law of the
country; and yet the writ is at common law. And also in Gavelkind
according to the custom [of Kent] the younger brother shall have as much
as the elder; and yet one brother shall recover against the other
brother by right "De rationabile parte," and by the "Nuper obiit," which
are writs at common law. So in the present case.'
"_Metingham_ [the judge]: 'Asseby, answer.'"
Now what was this custom? It is that known as "Borough English," and the
reader will have already inferred from the report of the action that,
wherever it prevailed, the youngest son claimed to succeed to his
father's estate. It is therefore the antithesis of the right of
primogeniture, whereby real estate falls to the eldest son. An old
record given to print by the late Mr. Robert Dymond, F.
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