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[001] to be excepted against the justices, the person of the plaintiff or the writ, let an exception
[002] then first be raised against the assise, according to the clauses of the writ and
[003] following its form. The writ contains these words, ‘if such a one wrongfully and without
[004] judgment etc.,’ [on which see above.]1 Also the word ‘disseised,’ to which it may
[005] be excepted that he was never in seisin and thus could not be disseised.2 3<One may
[006] be in seisin though he does not at once use, and in another's name just as in his own,
[007] as a clerk in the name of his church, who, when he is instituted and finds the church
[008] in seisin, which was never disseised, is at once in seisin, though he does not at once
[009] use. If he is then first disseised he will recover by the assise.>4 We must see the causa
[010] by which he claims that common of pasture is appurtenant to his free tenement: if
[011] by that of gift, and it is so agreed between donor and donee, and the donor has the
[012] animus donandi and the donee the animus possidendi, and the donee (either5 in his
[013] own person or through a procurator) is put into seisin, sees the tenement in which
[014] the common is granted, that suffices for livery, and he is at once in seisin, or quasi-seisin,
[015] by the intention and the view,6 civiliter by animus and will, naturaliter by
[016] presence and the view,7 though he does not at once put in his beasts. He is always
[017] taken to use until he loses by non-use.8 If it is by way of succession, we must then
[018] first see whether his ancestor died seised thereof or not, as where he was disseised
[019] before his death, and if so, when. If he died seised, his heir then at once begins to have
[020] the same seisin his ancestor had, since he is seised of the inheritance, which is, so
[021] to speak, the principal thing and the body, he is seised of the accessory, that is9 of the
[022] right of pasture and the common, which is incorporeal, and acquired solely animo by
[023] the intention to possess. And though he does not at once really use, by putting in
[024] beasts, he uses nonetheless, or quasi-uses, as above, and if he is subsequently forbidden
[025] to put them in, the assise of novel disseisin lies for him. But it cannot be transferred
[026] to another [by itself] before true use, [unless perhaps with the body, that is,
[027] with the tenement to which it is appurtenant.]10 It is otherwise11 with the tenement
[028] in which the common is. If after his ancestor's death he at once attempts to use and
[029] is forbidden or hindered,12 though he has no peaceful seisin, only a disputed one,13
[030] he nevertheless retains seisin by such use, until he is completely barred,



Notes

1. Supra 121

2. Supra 96

3. Supra i, 401

4. Infra 177, 326-7

5. ‘sive’

6. Supra ii, 126, 159, iii, 165, 168

7. ‘animo . . . naturaliter,’ from line 18

8. Supra ii, 167, iii, 165, 168, infra 177

9. ‘scilicet’

10. Supra ii, 162, iii, 166

11. ‘Secus’

12. Supra ii, 159, 160, 292, iii, 166, 167, 168; addicio transposed infra 174, n.3

13. Supra 33, 168, infra 175, 177


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