Bracton: Thorne Edition: English. Volume 3, Page 170

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Volume 3, Page 170

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[001] it. As long as he commits his injuria with my consent, acquiescence does not run
[002] against me; if he acts without my consent it would be otherwise.]

On the impetration of a writ of common of pasture when one has been disseised.

[004] If, therefore, one has been wrongfully disseised of his common of pasture by force,
[005] or hindered from using it conveniently and in the proper way, whether it is confined
[006] to what may be grazed upon or is taken broadly to include either interests,¹ if he does
[007] not put himself back into seisin at once, when he can, through negligence, or when he
[008] cannot, because of force and vis majeure, recourse must at once be had to him who
[009] safeguards rights² for the purpose of impetrating the assise provided for the recovery
[010] of possession. We must see how it is to be impetrated. Several servitudes may be constituted
[011] in one estate and over the whole for the benefit of several, just as for one.
[012] There may be several servitudes though there is but one estate, both by reason of the
[013] different tenements to which they are appurtenant and the different persons to
[014] whom the servitudes are owed. And because there are several persons and different
[015] tenements, there will thus be different rights, and therefore several different disseisins
[016] and several writs, not one writ because of the single tenement in which the servitude
[017] is constituted, but several, because several may have the right to pasture in one
[018] tenement.³ But if the tenement to which the common is said⁴ to be appurtenant is
[019] common among several, as among co-heirs before partition, whether all are disseised
[020] or only some, there will be a single disseisin, not several, because of the unitary right,
[021] though [it is the right] of several persons, and because the tenement is single before
[022] partition. If the tenement in which the common is granted is the common property
[023] of several parceners, heirs or neighbours, and one of them commits a disseisin, a writ
[024] is not on that account to be impetrated against them all, only against him who committed
[025] the injuria,⁵ unless all or some of them expressly avow his act before impetration.⁶
[026] If they avow it after impetration, before the taking of the assise, though they
[027] are not named in the writ they may freely put themselves on the assise as though
[028] they were named, that the matter may be determined against them all.⁷ If they are
[029] unwilling to do this, the assise will proceed against him who committed the disseisin,
[030] and if the plaintiff recovers by the assise he will recover against all, and⁸ if the parceners
[031] should afterwards attempt to disseise him again, and he impetrates against
[032] them, he will recover, even without a jury, by force of the first assise, for an assise
[033] must not be taken on an assise with respect to the same matter,⁹ lest the second be
[034] contrary to the first, for judgments might thus be made uncertain.

Notes

1. Supra 167

2. C. 3.28.35.pr.; supra 168

3. Reading: ‘non unum . . . sed plura quia plures possunt . . . tenemento’

4. ‘dicitur’

5. Supra 32-3

6. Supra 45, 48, 119

7. Ibid.

8. ‘et’

9. Supra 120, infra 352-3