buyer had to make it his business to seek out two or three of them
so as to secure their presence at the transaction.

Whatever the primitive constitution of society may have been, in
historical times three parties possessed an interest in the waste.
Blackstone defines common as "a profit which a man hath in the land of
another, as to feed his beasts, to catch fish, to dig turf, to cut
wood, and the like." In theory, the waste belonged to the King, who
vested portions of it in individual lords or religious houses, and they
thus became recognized owners of the soil. In case of outlawry or
attainder, the waste reverted to the Crown, which, according to custom,
held possession of it for a year and a day. Thirdly, the _use_ of the
soil, for various specified purposes, resided in the inhabitants of
certain townships or hundreds, was appendant to certain tenements, or
was reserved as easement on the sale of the land.

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, accord