seisin, he had none which was not disputed, subject to the taking of gage for the  payment of damages.1 Let the plaintiff then (if he can) show the contrary by the  assise. He [the tenant] may also say that if the plaintiff had any seisin he had it by  force, by stealth or at will,2 and in that case let the plaintiff (if he can) show the  contrary by the assise. He may also say that the tenement to which the common is  said to be appurtenant is his, not the plaintiff's, in which event, unless the plaintiff  shows the contrary, the assise falls, as [in the roll] of Easter term in the thirteenth  year of king Henry in the county of Nottingham, [the case] of Ralph son of Peter,3  where Ralph was told to sue by another writ. The tenant may also answer against  the assise that the plaintiff may claim no common in such place because that tenement  is his separate property, which he may enclose and cultivate at will and keep  enclosed at all times.4
The replication to the exception.
 In reply to this let the plaintiff (if he can) show by the assise that the matter is otherwise  or different, that is, that it may not be enclosed at any time, or only at certain  hours and times. The tenant may answer and say that the plaintiff has no free or  quasi-free tenement to which any common can be appurtenant, not even a small  holding. [Or] that no common is appurtenant to that tenement because it was once  forest, wood and a place of waste solitude5 or common, now assarted or reduced to  cultivation, and common ought not to be appurtenant to common where all the  people of the country used6 to intercommon. This is confirmed [in the roll] of the  eyre of William of Ralegh in the county of Warwick, an assise of novel disseisin of  common of pasture [beginning] if Augustinus etc.7 The same may be said of marshes  and other wastes brought under cultivation, for ubi eadem ratio ibi idem jus. The  tenant may also say in opposing the assise that the principal disseisor died before  impetration of the writ, or before the taking of the assise, as [in the roll] of Trinity  term in the thirteenth year of king Henry, from the eyre of Middlesex, [a case beginning]  if Stephen archbishop of Cantebury and others.8 But what shall be said if  the assise was taken in the lifetime of the principal9 disseisor who died before judgment?  It is evident that judgment ought not on that account to remain. It may be  said against the assise that it does not lie because of error, as where the plaintiff10  claims common where he ought to sue by claiming the tenement, by an assise of novel  disseisin, that is, where another does not allow him to pasture his cattle in his own  estate, and thus to possess it quietly and in peace,