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[001] enters into another's property1 usurps a right to himself, as2 by felling or cutting
[002] [boundary] trees or removing boundary stones, as was said above?3 4First of all,
[003] before the assise [is taken], gages are to be taken, if that can be done, and thus the
[004] trespass will be amended. If he does not permit himself to be gaged, recourse must
[005] be had to a writ of novel disseisin until it is clear whether he claims a right in the
[006] thing or not,5 [if not], the assise falls into a jury and the penalty for trespass will be
[007] doubled. Similarly, if one commits waste or destruction in a tenement he holds for
[008] life, to the extent that he exceeds mean and measure he commits a trespass, since only
[009] reasonable estovers are granted him, not waste.6 And if one acting in that way is impeded
[010] by someone7 whose concern it is, a kinsman or friend, the tenant will not have
[011] the assise, for the intention of the other will excuse him of the disseisin, because to
[012] the extent that the tenant abuses, by using wrongfully, by exceeding proper use and
[013] due measure, he cannot say that he was disseised, because only reasonable use is
[014] granted him. If he continues his improper use for some time his seisin will be void,
[015] because it is not seisin which leads to improper use but a wrongful presumptuous act.
[016] Thus the reason for his act and his intention frees the impediant. But it will have to
[017] be found by the assise taken in the manner of a jury, that is, whether it is indeed
[018] waste or the taking of reasonable estovers. The assise sometimes falls into a perambulation,
[019] if it is uncertain in which county or in whose fee the tenement in question
[020] lies.8

The assise is sometimes turned into a jury because of the trespass of distress, for a disseisin may be committed under colour of distress.


[022] An assise is sometimes turned into a jury because of the trespass of distress. For distress
[023] sometimes amounts to a disseisin, sometimes to a trespass, grievous or slight,
[024] and accordingly the matter will be determined in the manner of an assise, if it is a
[025] disseisin, or the assise will be turned into a jury if it is a trespass, major or minor:
[026] [Hence when an assise has been impetrated because of the injuria of distress, if it
[027] cannot avail as an assise for determining disseisin, it may nevertheless serve as a jury
[028] for determining trespass.]9 major, as where it is not clearly disseisin but yet not very
[029] different from it, the next thing to it, so to speak, and bordering upon it, as [where],
[030] though one is not so impeded by a distress that he cannot use his property at all,10 he
[031] cannot use it advantageously because of a too burdensome or excessive distress, beyond
[032] mean and due measure. A trespass may be simple, double, triple, quadruple or
[033] multiple.11 Simple, but grievous, as where a distress is levied



Notes

1. ‘ingrediatur in alieno’

2. ‘ut’

3. Supra 31, 127-8

4. New paragraph

5. ‘donec sciatur . . . vel non,’ from lines 6-7; supra 152

6. Supra 36, infra 405

7. ‘aliquem’

8. Supra 81, 139

9. Om: ‘transgressio . . . minor,’ a connective

10. Om: ‘tamen erit . . . disseisinae’

11. Infra 154


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