Some very interesting questions, arising out of this joint occupancy, were raised in the courts at the close of the thirteenth century--notably the right of search for the object of ascertaining whether there were on the common more animals than any of the parties was entitled to place there, and, if so, of impounding them. Was this right appurtenant to the manor, or was it also appendant to a frank tenement in a particular vill? In one case where the lord had depastured an excess of beasts, the court decided against him, and in favour of a commoner whom he accused of "tortiously" taking his cattle. But, notwithstanding this judgment, there is some uncertainty on the point, as appears from the report of an action tried in the Middlesex Iter of 1294.
"Robert Fitznel brought the Replegiare against Richard, the son of John, saying that he had tortiously taken his beasts in the wood of the Abbat of Horwede, formerly the forest of King Henry, by whom it was given as a chace to N., ancestor of Richard."
"_Warwick_: 'Sir, we offer to aver that Robert and all those who have held the land in N., which he holds have been seised for all time, &c, of the common in the wood where his taking was made as appurtenant to their frank tenement....'
"_Gosefield_ imparted, and returned and said: 'Sir, we will tell you the truth of this matter; and we tell you that the place where the taking was made was King Henry's forest; and Henry granted what was the forest to our ancestor by way of chace; and that in that chace, according to the custom of the chace, no person could put to common more beasts than could be fed or wintered on the produce of the land which he held in the same chace; and because Robert brought his beasts from his lands which he held elsewhere, which beasts could not be fed or wintered on the land which he held within the chace, contrary to the usage and custom of the said chace, he (Richard) took them, &c....'
"_Warwick_: 'Sir, first of all they avowed the taking, and said that we ought not to have any kind of common; and now they have admitted our right of common partially, viz. as to beasts which can be wintered ...'
"_Gosefield_: 'The assise of forest is notorious and well-known to all, viz., that no man can have therein more beasts to common than can be fed off the said land.'