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[001] as in gold and silver coins, and not only in such but in other things which are weighed,
[002] counted or measured. Measured, whether it is a liquid, as wine and oil, or a solid, as
[003] wheat; whether it has been measured or not measured: measured, as in a bushel, unmeasured
[004] as in a sheaf, [and though it is taken] sometimes in one place, sometimes in
[005] another, provided it is in a single tenement.1 And so of a liquid. And the same of
[006] things that are counted. 2 Quiet and peace, peaceful possession and freedom, may be
[007] called a free tenement or a quasi-free tenement, for he who has neither quiet nor peace
[008] loses the advantage of his tenement, since without these a tenement cannot be enjoyed,3
[009] as where another attempts to use by force against the will of the owner, [or]
[010] levies wrongful distraints amounting to trespasses,4 which take from him the advantage
[011] of possessing, [or] if wrongfully and without the lord's consent he attempts to
[012] use some servitude, as where he attempts to put in beasts by force, or to use it other
[013] than in the proper way, contrary to the will of the lord whose tenement it is. 5 Some
[014] tenements are privately owned, the property of an individual by himself, without a
[015] parcener or one joined to him, others are not held alone but with another joined to
[016] him or6 a parcener: with one conjoined, as where a man holds with his wife, or conversely,7
[017] who are not called parceners because their rights and the property do not
[018] admit of division, for they are one flesh though different souls;8

A common tenement.

[020] 9with a parcener, before partition, [that is] in the case of corporeal things which admit
[021] of division. Incorporeal things, as rights, cannot be partitioned though they are common;
[022] and similarly liberties, which are common,10 cannot be divided. The word ‘common’
[023] means ‘together with others’ or ‘with others in one,’ that is, ‘together.’11 A
[024] common tenement is not the property of any one by himself, nor is [any] separate
[025] part, but his with others as a whole in common. That12 which is corporeal and by its
[026] nature divisible among co-heirs and parceners may remain undivided, if they so
[027] agree, to him and the others for some [common] use, as for pasture or cultivation; the
[028] use will be the property of each person individually and by himself, over the whole,
[029] and the tenement common to all the parceners as a whole, not the separate property
[030] of any one, as a whole or in part.13 Hence when by common consent it is once agreed
[031] among the parties that the tenement remain in common, that agreement cannot be
[032] dissolved or the property divided without an agreement by all to the contrary, for
[033] nothing is so in accord with natural equity etc.14 A thing may be held in common with
[034] others, not by one without the others,


1. Infra 130, 132

2. New paragraph

3. Supra 19, 26, 28, 75

4. Infra 153

5. New paragraph

6. ‘vel’

7. Supra 113-14, 124

8. Supra ii, 104

9. Om: ‘Item commune aliud’

10. ‘quae communes sunt’

11. Infra 166

12. ‘Id’

13. Supra 127

14. D. 50.17.35; supra ii, 289, infra 167-8, 178

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