Bracton: Thorne Edition: English. Volume 3, Page 185

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Volume 3, Page 185

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Of the plea quo jure.

[002] ¹ A servitude in the estate of a neighbour, as where one has common of pasture and
[003] the right to pasture in another's estate, is not always owed through consent and the
[004] constitutions of lords, but through the negligence and dissimulation of a neighbour,
[005] simply because of use.² Such seisin derives its strength from time rather than right,
[006] and thus it will be altogether absurd for possession to remain with him, though it has
[007] once been acquired by an assise, unless he shows his right, [But we must first see for
[008] whom this action lies. It is clear that no one may implead another by this writ of
[009] quo jure unless he is the chief lord of the whole manor or vill in which the common
[010] is claimed,³ or of a part, provided [the parts] belong to different baronies or different
[011] fees or different feoffments, so that the lord who claims and the defendant have their
[012] separate rights, that is, different tenements and different pastures, whether the word
[013] is taken broadly or narrowly. If several have been enfeoffed by one lord in one manor
[014] or vill, this writ or action is not available to them, since between neighbours holding
[015] of the same barony and the same fee it ought, properly speaking, to be called vicinage
[016] rather than common owed: [vicinage], as where one intercommons with his neighbour
[017] and his neighbour with him, otherwise not.] ⁴ by what right he exacts it, by this writ.
[018] [One chief lord or several may plead against one chief lord or several, whether they
[019] have tenements in different vills or in one, provided that different baronies and
[020] different fees are involved.]

Writ by what right one exacts common.

[022] ‘The king to the sheriff, greeting. If such a one has made you secure, etc. then summon
[023] such a one to be etc. to show by what right he exacts common of pasture in the
[024] land of the plaintiff in such a vill, in as much as he has no common in the defendant's
[025] land in such other vill, nor does the same defendant so him service by reason of which
[026] he ought to have common in his land, as he says. And have etc.’⁵ When the defendant
[027] has been summoned, he may essoin himself on the first day, as may the plaintiff if
[028] he so wishes. If the defendant neither comes nor essoins himself, let him be attached,
[029] as in a personal action, because the pasture is not here being claimed, as by a writ of
[030] right, as will be explained below.⁶⁷<When after all distraints he has finally appeared,
[031] let the justices then immediately inquire whether the defendant claims common, to
[032] which he may reply that he does or does not. [If he does], let him be asked of what
[033] kind, and, the common having been specified, let the procedure thereafter be the
[034] same as on a writ of right. If he then makes default, let the pasture be taken into the
[035] hand of the lord king until

Notes

1. Selden Soc. vol. 80, lxviii-lxxii

2. Supra ii, 158, iii, 163

3. Selden Soc. vol. 80, lxix

4. Om: ‘Cum igitur . . . nisi doceat,’ a connective

5. Supra 163, 174; Selden Soc. vol. 80, lxviii

6. Infra 327

7. Supra i, 402