"One A. brought a writ of entry against B., saying, 'Into which he had not entry except by such an one who had tortiously, &c, disseised his father Robert.' And he laid the descent thus: 'From Robert descended the right, &c, to Adam the present demandant, as his youngest son and heir, according to the custom of such a place, &c.'
"_Asseby_: 'Sir, we tell you that Adam has an elder brother named N., who is legitimate and is alive, and whom they have omitted. Judgment of the omission.'
"_Sutton_: 'Sir, even if he had made a quit-claim to him, yet that could not be a bar to us, because by the custom of the country the youngest shall have his inheritance, wherefore there is no need to make mention of him.'
"_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.S.A., exhibits in great detail the customs of the Manor of Braunton, in Devonshire, and among them is that of Borough English, or, as it is termed in local parlance, "cradle-land." This testimony is of peculiar interest, since the document comprises a provision for the assignment of the property in the not wholly improbable event of the family consisting entirely of daughters. The section touching upon Borough English is thus formulated: