Bracton: Thorne Edition: English. Volume 3, Page 129

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Volume 3, Page 129

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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,

Notes

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