Bracton: Thorne Edition: English. Volume 3, Page 187

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Volume 3, Page 187

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[001] acknowledges in court that the tenant may enclose the land in which the common
[002] is claimed, plough it and build on it or do whatever else he wishes, the writ quo jure
[003] falls, as [in the roll] of Michaelmas term in the seventh and the beginning of the
[004] eighth years at the beginning of the roll.¹ ²<A tenant who has been impleaded may
[005] put himself on the grand assise as to whether he has a greater right to hold his land
[006] (or tenement or common) [free of any common] which the demandant may have or
[007] claim there, than he who claims has for having common of pasture in the same as he
[008] claims it, or conversely.> And note that if one is disseised of his common of pasture
[009] and sues by writ of novel disseisin, and the disseisor at once sues by the writ quo jure,
[010] let the assise always precede³ as in other pleas, and⁴ according as seisin does or does
[011] not remain to the plaintiff, let the plea by quo jure proceed or not, as [in the roll]
[012] of Easter term in the eighteenth year in the county of Sussex, between Simon de la
[013] Punde and John Eynesworthe,⁵ and elsewhere. The same could be done with respect
[014] to every kind of common which may be enjoyed in another's property, if that were
[015] the usage,⁶ because⁷ one ought to lose possession unless he can show it to be rightful.
[016] When it has been recognized and proved, by a jury or in some other way, that the
[017] person summoned ought not to have common, the plaintiff will then have his peace
[018] by this writ: ‘The king to the sheriff, greeting. Know that when A. was summoned in
[019] our court etc. to answer B. as to the right by which he claimed common in the land
[020] of the same B. in such a vill, in as much as the same B. had no common in the land of
[021] the same A. in the same vill (or in another, such a vill), nor did the same A. do him
[022] service for which he ought to have common, the same A. appeared in the same court,
[023] and the questions and answers of the parties having there been heard it was finally
[024] decided, in our same court before our same justices, that the aforesaid A. may neither
[025] have nor exact common in the land of the same B. in the aforesaid vill without the
[026] consent of the same B. And therefore we order you to cause the same B. to have his
[027] land in the aforesaid vill of N. in peace, so that the aforesaid A. have no common
[028] there without B.'s consent. Witness etc.’⁸

Of common of reasonable estovers in another's land, in woods and heaths and in other things, in wastes.

[030] We have spoken above of common of pasture and the right of pasturing in another's
[031] property. Now we must turn to another kind of common, according as the word is
[032] taken broadly, ‘together with another in another's land,’⁹ not for food but for a
[033] benefit of another kind, as where one

Notes

1. B.N.B., no. 1624; C.R.R., xi, 651: ‘de communa’ written above entry

2. Supra i, 402

3. ‘praecedat’

4. ‘et’

5. Not in B.N.B.; no roll extant

6. Infra 189

7. ‘quia’

8. Supra ii, 294, n. 17

9. ‘in fundo alieno,’ from 188, line 1; supra 166