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[001] seisin, he had none which was not disputed, subject to the taking of gage for the
[002] payment of damages.1 Let the plaintiff then (if he can) show the contrary by the
[003] assise. He [the tenant] may also say that if the plaintiff had any seisin he had it by
[004] force, by stealth or at will,2 and in that case let the plaintiff (if he can) show the
[005] contrary by the assise. He may also say that the tenement to which the common is
[006] said to be appurtenant is his, not the plaintiff's, in which event, unless the plaintiff
[007] shows the contrary, the assise falls, as [in the roll] of Easter term in the thirteenth
[008] year of king Henry in the county of Nottingham, [the case] of Ralph son of Peter,3
[009] where Ralph was told to sue by another writ. The tenant may also answer against
[010] the assise that the plaintiff may claim no common in such place because that tenement
[011] is his separate property, which he may enclose and cultivate at will and keep
[012] enclosed at all times.4

The replication to the exception.

[014] In reply to this let the plaintiff (if he can) show by the assise that the matter is otherwise
[015] or different, that is, that it may not be enclosed at any time, or only at certain
[016] hours and times. The tenant may answer and say that the plaintiff has no free or
[017] quasi-free tenement to which any common can be appurtenant, not even a small
[018] holding. [Or] that no common is appurtenant to that tenement because it was once
[019] forest, wood and a place of waste solitude5 or common, now assarted or reduced to
[020] cultivation, and common ought not to be appurtenant to common where all the
[021] people of the country used6 to intercommon. This is confirmed [in the roll] of the
[022] eyre of William of Ralegh in the county of Warwick, an assise of novel disseisin of
[023] common of pasture [beginning] ‘if Augustinus etc.’7 The same may be said of marshes
[024] and other wastes brought under cultivation, for ubi eadem ratio ibi idem jus. The
[025] tenant may also say in opposing the assise that the principal disseisor died before
[026] impetration of the writ, or before the taking of the assise, as [in the roll] of Trinity
[027] term in the thirteenth year of king Henry, from the eyre of Middlesex, [a case beginning]
[028] ‘if Stephen archbishop of Cantebury and others.’8 But what shall be said if
[029] the assise was taken in the lifetime of the principal9 disseisor who died before judgment?
[030] It is evident that judgment ought not on that account to remain. It may be
[031] said against the assise that it does not lie because of error, as where the plaintiff10
[032] claims common where he ought to sue by claiming the tenement, by an assise of novel
[033] disseisin, that is, where another does not allow him to pasture his cattle in his own
[034] estate, and thus to possess it quietly and in peace,


1. Infra 177

2. Supra 163, 165, 167

3. B.N.B., no. 330; C.R.R., xiii, no. 2021

4. Infra 182

5. Deut. 32:10

6. ‘solebant’

7. Not in B.N.B.

8. B.N.B., no. 336 (margin): ‘Nota quod cadit assisa nove disseisine ubi principalis disseisitor de pluribus mortuus est’

9. ‘principalis’

10. ‘propter errorem, ut si querens’

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