Bracton: Thorne Edition: English. Volume 3, Page 171

Harvard Law School Library

Bracton Online -- English

Volume 3, Page 171

Next

Go to Volume: Page:

On the duty of the sheriff.

[002] ¹The writ having thus been impetrated, the sheriff must be called upon at once and
[003] without delay. The duty of the sheriff is to take pledges,² [as above [in the portion]
[004] on novel disseisin.]³ Then, in the presence of the parties, if they wish to be present,
[005] he must choose twelve men, who [ought to view] the common of pasture at once. Let
[006] them see the place in which the common⁴ is claimed, and also the tenement to which
[007] it is said to be appurtenant. The tenement in which the common is claimed, that is,
[008] its nature and size and its boundaries. They ought to enquire carefully into the kind
[009] of disseisin, that is, whether he is completely expelled or hindered from using conveniently.
[010] Also the season at which common is owed, and for what kind and what
[011] number of beasts, that they may certify the justices thereof when required. They
[012] ought to see the tenement to which the common of pasture is said to be appurtenant
[013] because no one may claim common of pasture as appurtenant to his free tenement
[014] unless he has a free tenement.⁵ It is called free to distinguish it from villeinage, from
[015] villeins who hold a villeinage, because they have neither an action nor the assise,
[016] only the lord whose free tenement the villeinage is. [And] that it is his free tenement,
[017] not another's, that is, if he holds it [in his own name, not] in another's, as a farmer for
[018] a term or a creditor in gage. They ought to see the place in which the pasture is claimed
[019] because the right to pasture itself cannot be seen. ⁶It is incongruous to ask how
[020] many acres of common he claims when what ought to be asked is in how many acres
[021] he claims common.

Form of the writ of common of pasture.

[023] ‘The king to the sheriff, greeting. A. has complained to us that B. wrongfully and
[024] without judgment disseised him of his common of pasture in such a vill which is
[025] appurtenant to his free tenement in that same vill (or in another, such a one). We
[026] therefore order you, if the said A. has made you secure etc. (as above). And in the
[027] meantime cause twelve free men etc. to view that tenement and that pasture, and
[028] summon such a one etc. (as above).’⁷ Having put forward his claim he must support
[029] it according to the form of the writ: ⁸<First let him confirm the person [of the judge
[030] etc.]>⁹ show the reason why it is appurtenant to his tenement, as where he says that
[031] the common is appurtenant to his free tenement because he was enfeoffed of the
[032] tenement with common of pasture for so many beasts, [or for some other reason],
[033] as may be drawn from what has been said above of the reasons why common¹⁰ is
[034] appurtenant to a tenement.¹¹ He must also show the kind of pasture, whether the
[035] word is used in its broad or narrow sense, that a thing certain may be brought before
[036] the court.¹² Also from what tenement

Notes

1. This portion should follow the writ

2. Deleted

3. Supra 58

4. ‘communa,’ all MSS

5. Inst. 2.3.3: supra 163, 167, infra 195

6. New sentence

7. Glanvill, xiii, 37; supra 57

8. Supra i, 401

9. ‘personam iusticiarii,’ as supra 78

10. ‘communa’

11. Supra 166

12. ‘iudicium’