'
"_Hertford_ [the judge]: 'Do you accept the averment or not?'
"_Gosefield_ (being obliged to accept the averment) said: 'Sir, they
were never seised of common for more beasts than could be wintered and
fed and supported on the growth of the said land.'"
There is appended to this report a note which lays down the law in a
different sense from that before stated. It is as follows:
"It is not sufficient for anyone who avows distress to say that he
avows the taking, &c., for that he found the beasts in his chace of such
a place, or in the common of such a place, where he had no right of
common; for it may be that neither party had a right of common; and thus
it is not sufficient but he must say that he found them in his several
pasture, or must say some other thing that touches himself and gives him
a right to impound what he found. For no man can avow a distress in a
common pasture save the lord of the soil of the common pasture. For if
any of the commoners were to make avowry for beasts taken in the common
pasture it would then follow that if the Inquest were to pass against
the plaintiff, he who avowed the taking in the common pasture would have
the return of the beasts and the amends, and not the lord of the
pasture, and that would be improper. But this does not hold good where
the King is the lord of the common pasture, and several persons holding
of him in socage have common, because in that case anyone having common
may avow a good distress.
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