Bracton: Thorne Edition: English. Volume 3, Page 184

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Volume 3, Page 184

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[001] parties, if after having been summoned they wish to be present, let him diligently
[002] inquire, [by] questions and answers,¹ by the oath of neighbours, through whom the
[003] truth of the matter may more readily be ascertained, and by an examination of the
[004] charters and documents, how many beasts and animals the defendant ought to have
[005] there, by the constitution of a servitude, by the causa of gift, by reason of his tenement,
[006] through vicinage, or by long use. If without limit and throughout, let him
[007] then inquire as to the number of beasts the pasture can accommodate, and how many
[008] he may maintain, according to the time of his feoffment or² the time of the constitution
[009] of his servitude, and³ if it was then sufficient for all entitled to have common
[010] there; and if it was later rendered insufficient, [whether it was] by over-burdening or
[011] by a new feoffment, by which the others, entitled to intercommon by reason of the
[012] first feoffment, lose their common in part or completely. And all these matters having
[013] been investigated, let the admeasurement proceed, that the excess be reduced to
[014] proper measure. For there is mean and measure and certain bounds beyond and short
[015] of which right cannot exist.⁴ Note that with respect to overstocking two remedies
[016] are available to intercommoners against the owner of the tenement, either admeasurement
[017] or the assise of novel disseisin of common of pasture, if common is completely
[018] or partially lost through overstocking, just as they lie for the lord against them for
[019] overstocking without his consent, as was said above.⁵ Similarly several intercommoners
[020] have the same remedies as between themselves, if one of them overstocks.⁶
[021] [If] several heirs and parceners assign some part of their tenement for pasture in
[022] common and one or some overstock, admeasurement or the assise of novel disseisin
[023] lies, [novel disseisin] not of common of pasture but of a free tenement, as though one
[024] alone wished to appropriate a portion for himself.⁷ If one attempts to overstock the
[025] pasture otherwise than is permissible or expedient, or to use it otherwise than his
[026] father or mother or other ancestor did, let admeasurement be made by the following
[027] writ.

Writ brought before the justices on the same matter.

[029] ‘The king to the sheriff, greeting. If A. has made you secure with respect to prosecuting
[030] his claim etc. then summon B. by good summoners to be before the justices
[031] at the first session etc. to show why he overburdens the common pasture (or heath)
[032] in such a vill which is appurtenant to his free tenement in that same vill (or in another)
[033] in a manner other than C., the father of B., whose heir he is, was accustomed
[034] to do. And have there etc.’ The proceedings under this writ are the same as under
[035] that above, and let a summary inquest be made in this case and in that, as ought to
[036] be done in the ecclesiastical court in a case of bastardy.⁸

Notes

1. Reading: ‘per quaestiones (for ‘quae rationes’) et responsiones’; om: ‘praetendere’; infra 187

2. ‘vel’

3. ‘et’

4. Horace, Satirae i, 1, 106; supra ii, 249, iii, 154

5. Supra 183

6. Cf. supra 183

7. Cf. infra 188

8. Infra iv, 305