Bracton: Thorne Edition: English. Volume 3, Page 326

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Volume 3, Page 326

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[001] the right and the reign and of esplees taken, it will not be good. Whence it is clearly
[002] evident that the proprietary right cannot exist without use and esplees, as the right
[003] of possession may, as was said above. It follows, therefore, that neither one of these
[004] actions is turned into the other by the narratio. But within actions on the proprietary
[005] right, a writ of entry is sometimes turned into a writ of right because of a very
[006] distant entry, of necessity, because one cannot prove the entry by a witness's own
[007] sight and hearing. Conversely, a writ of right is sometimes turned into a writ of
[008] entry, but not without the tenant's consent, when time makes it possible for the
[009] entry to be proved by the sight and hearing of some witness, as will be explained
[010] more fully below [of entries.]¹

A writ on the seisin of an ancestor who died seised of common of pasture: [quod permittat].

[012] If one dies seised as of fee of common of pasture appurtenant to his free tenement
[013] from the land of another, the seisin he had on the day he died he transmits to his
[014] heirs. If when the heir is in seisin he is forbidden to use, the assise of mortdancestor
[015] is not available to him, since he is, so to speak, in possession of the right, though
[016] prevented from using it.² Since he is so forbidden, he is aided, by favour of the prince,
[017] by this writ, not by way of an assise but by a jury. The form of the writ is this:

The form of writ where one dies seised of common of pasture and seisin is taken from his heir, and of cosinage.

[019] ‘The king to the sheriff, greeting. Order such a one that rightfully and without delay
[020] he permit such a one [B.] to have his common of pasture in his land of³ such a vill,
[021] of which his father (or ‘mother,’ ‘brother’ or ‘sister,’ ‘uncle’ or ‘aunt,’ or even
[022] ancestor, ‘grandfather’ or ‘greatgrandfather’ etc., or ‘his cousin,’ all of whom may
[023] properly be called ancestors since they antecede⁴ the heir in the possessory right)⁵
[024] whose heir he (or ‘she’) is, was seised as appurtenant to his free tenement in the
[025] same vill (or in another) on the day he died, as he says. And unless he does so and if
[026] the same [B.] has made you secure etc., then summon the aforesaid by good summoners
[027] to be before our justices at their first session, when they have come into those
[028] parts, to show why he has not done so. And have there the summoners and this
[029] writ.’ What is said of an heir may be said of a successor, as of the rector of a church
[030] whose predecessor died seised of common of pasture as appurtenant to his church.
[031] The form of the writ is this:

Notes

1. Infra iv, 43

2. B.N.B., no. 1930 (margin): ‘Nota de communa pasture ubi nulla assisa mortis antecessoris et ideo concessum est breve quod permittat loco assise, [quod permittat] talem habere communam de qua talis antecessor obiit et fuit seisitus die quo obiit tanquam pertinentem ad liberum tenementum suum in tali villa.’ Selden Soc. vol. 80, p. lxxii. But mortdancestor and novel disseisin lie: supra 173, 174, infra 327-8

3. ‘de’

4. Supra ii, 195

5. Om: ‘Et unde praedictus talis’