so that he cannot use.1 Only then must recourse be had to a superior, as above.2 If  he did not die seised, we must then see whether he was disseised long before his death,  so that he could have sued by the assise but did not, through negligence, 3<or so shortly  before it that he still retained civil possession.> In the [first] case, the heir is not  aided by the assise, since, because of the negligence of his ancestor, he cannot be  heard except on the property, for to those who are vigilant etc.4 Thus one suffers  damage without fault through the default of another. If he was disseised shortly  before his death, or during the illness in which he died, so that he could not sue, his  animus retinendi remaining unchanged and his intention to sue if he could, he is always  taken to be in possession and to die seised, since he always retained civil possession.5  Hence he transmits the same6 to his heir, and by virtue of it the heir may use  unless he is prevented. If he is prevented, so that he cannot enter at all, he will have  the assise of mortdancestor,7 or another writ in place of mortdancestor,8 or novel disseisin,9  as he chooses. But whether it was long before or shortly before his death that  the ancestor was disseised, [if] in his lifetime he sought to recover it by writ, so that  a view of the land was made and the jurors etc., by such impetration he was taken to  have lost both possessions, civil and natural, and thus could transmit no seisin to his  heir.10 But because he sued he transmits an action of novel disseisin, [so to speak, by  writ of entry,]11 not as to the penalty for disseisin but as to restitution, in accordance  with the twofold nature of novel disseisin, as above. For the injuria is extinguished  by the death of him who caused it, and similarly by that of him to whom it is done,  and thus the penalty is extinguished because the injuria dies with the person, [as  below more fully [in the portion] on entries post disseisin through the death of the  principals.]1213The words of his common of pasture appurtenant to his free tenement  are also in the writ and from them an exception arises for the tenant. With  respect to the word common, of what nature the exception ought to be may be drawn  satisfactorily from the foregoing; so with respect to which is appurtenant etc. [With  respect to the word tenement],
Of exceptions against the assise.
 the tenant may say and except that the tenement in which the common is claimed  and that to which the common is said to be appurtenant are of different baronies and  different fees, and that the fee in which the common is claimed is free and owes no  servitude to the other, nor had the plaintiff ever had common there, nor the right of  pasturing, either by virtue of any formal constitution or through use, in return for  service or because of vicinage;14 and if he ever had any use or
8. No mortdancestor, but quod permittat: infra 326; B.N.B. no. 1930 (margin): Nota de communa pasture ubi nulla assisa mortis antecessoris, et ideo concessum est breve quod permittat loco assise talem habere communam de qua talis antecessor fuit seisitus die quo obiit tamquam pertinentem ad liberum tenementum suum in tali villa