Bracton: Thorne Edition: English. Volume 3, Page 199

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Volume 3, Page 199

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[001] for whom a longer sojourn in the market will be necessary; the third¹ part is left for
[002] those returning from the market to their homes. All these must be done by day, not
[003] at night, because of ambushes and the attack of robbers, that everything may be
[004] safe. Thus if a market is established within this limit it must be cast down, since it is
[005] a harmful nuisance, and wrongful because neighbouring. If it is beyond this limit,
[006] though harmful it will not be wrongful, because it is remote and not neighbouring. A
[007] market may [also] be neighbouring and within the aforesaid limits and yet not wrongful,
[008] because not harmful but rather beneficial, as where the one newly established is
[009] held on the second or third day or longer after the day of the other market; if before
[010] the second or third day it will be wrongful because harmful. Hence if a market is not
[011] neighbouring it must not be demolished, because it is not wrongful though harmful.
[012] If it is neighbouring and within the aforesaid limit, it must be maintained if it is
[013] beneficial, because of the words ‘unless it is to the nuisance.’ [In order to ascertain]
[014] if the holding of one is a nuisance to the other, we must see which of them was first
[015] held, and thus, though to the nuisance, not wrongful to the other because it is first.
[016] Though harmful a market will not be wrongful if it is held with the permission of the
[017] plaintiff.

Writ of entry after a disseisin of servitudes and their appurtenances if one or both of the parties dies.

[019] In the assise of novel disseisin of common of pasture or other common, which may
[020] be called servitudes and rights, if one of the parties dies, or both, the wrong will
[021] remain, though the assise falls to the extent that it is penal, as said above with respect
[022] to a free tenement. And just as that assise is penal, personal and restitutory, so this
[023] assise is restitutory as to the status quo ante as against heirs and other possessors,
[024] that the thing be restored to its proper condition [by a writ of entry,]² as there, by
[025] this writ.

Writ.

[027] ‘The king to the sheriff, greeting. Order A. that rightfully etc. he restore to B. common
[028] of pasture for so many beasts (or ‘as much as belongs to so large a tenement in
[029] that same vill,’ or ‘according to the modus of the feoffment.’ Or thus: ‘common of
[030] pasture throughout the whole of his land for so many beasts (or [‘for beasts without
[031] number and] of every kind’) in woods and wastes everywhere, excluding wheatfields,
[032] meadows and rightful fenced-in portions.’ Or thus: ‘common of wood (or ‘heath’
[033] or ‘turbary’) for reasonable estovers,’ or ‘common of mast,’ [or] ‘common of digging,’
[034] ‘drawing water,’ ‘hunting,’ ‘fishing’ and the like, according to all [the various]
[035] kinds of commons with their appurtenances.) in such a vill, which is appurtenant
[036] to his free tenement in the same vill (or in another) of

Notes

1. ‘tertia,’ all MSS

2. Supra 195; no mention of entry in writ