Bracton: Thorne Edition: English. Volume 3, Page 172

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Volume 3, Page 172

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[001] it is appurtenant and to what kind of tenement. Similarly, the season at which it is
[002] owed, and the kind and number of beasts, and the manner [of use], as was said above.¹
[003] And if once broad and extensive, if it has subsequently been confined and restricted.
[004] That it may be confined and restricted, may be deduced from the foregoing, as where
[005] it is constituted over an entire estate and throughout, it may be limited to a certain
[006] place. And so if it is without restriction of time, it may be limited to a certain time,
[007] and so as to other matters.² When the plaintiff's claim has been supported in this
[008] way, the tenant may except against the person of the plaintiff in many ways, because
[009] the plaint belongs not to him but to another,³ or in another way,⁴ [as was explained
[010] above more fully in [the portion on] the assise of novel disseisin.]⁵ He may except by
[011] virtue of his own person, [as above in the same portion on the same matter.]⁶ He
[012] may except that he did not disseise him since he was never in seisin, as above.⁷ With
[013] respect to the words in the writ ‘of his common,’ he may except that he could not
[014] have common there, as will be explained below [[in the portion on] when an exception
[015] may be raised against the assise.]⁸ An exception may be raised against the writ,
[016] because of error, as above more fully.⁹ Also against the judge, as above.¹⁰ Also against
[017] the person of the plaintiff as above, as the question of status, [with this exception,
[018] that if a free woman married to a villein arraigns an assise of common of pasture appurtenant
[019] to her free tenement, when the villein is beyond the potestas of his lord in
[020] a free status,¹¹ they ought to recover seisin notwithstanding the exception of villeinage,
[021] no matter by whom put forward, at least until the villein is proved to be a villein
[022] and reduced to servitude. Not even then will it be lawful for the lord to put himself
[023] into the wife's tenement, since that is not the villein's own tenement, and if he does so
[024] the villein and his wife will recover by the assise, despite the exception of villeinage,
[025] since that does not lie for anyone, not even for the lord. Hence though at one time an
[026] exception of villeinage raised against a villein and his free wife claiming common of
[027] pasture by the assise as appurtenant to their free tenement [was good], it was finally
[028] decided that the common of pasture should be annexed to the free tenement, as an
[029] accessory to the principal, and thus what ought to have been done by right of action
[030] was done by the judge acting ex officio.]¹² When such exception is put forward, it
[031] must be ascertained whether it lies for the tenant or not, as above. If it does lie, he
[032] must prove it, [for] just as the plaintiff would have to prove his claim if no exception
[033] had been raised at the outset, according to what was alleged, [so] the tenant must
[034] prove his exception, unless the plaintiff in his replication can show that it is void or
[035] completely null. When there is nothing

Notes

1. Supra 167

2. Infra 178, 179

3. Supra 83 ff.

4. Deleted

5. Supra 116

6. Supra 118

7. Supra 96

8. Infra 174

9. Supra 77, 79

10. Supra 78, infra iv, 280

11. ‘in statu libero,’ as supra 115

12. Supra 35, 93, 113, 115