damages, a special agreement is required. Also, if an inn-keeper, or other victualler, hangs out his sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveller. If any one cheats me with false cards or dice, or by false weights and measures, or by selling me one commodity for another, an action on the case also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest. In contracts for provisions it is always implied that they are wholesome; and, if they be not, the same remedy may be had. Also, if he that selleth any thing sale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not so he shall make compensation to the buyer; else it is an injury to good faith, for which an action on the case will lie to recover damages. The warranty must be upon the sale; for if it be made after, and not at the time of the sale, it is a void warranty. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's senses, as, if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind.

doth upon the

Thus much for the non-performance of contracts express or implied, which includes every possible injury to what is by far the most considerable species of personal property, viz. that which

consists in action merely, and not in possession. Which finishes our inquiries into such wrongs as may be offered to personal property; with their several remedies by suit or action.

CHAPTER X.

OF INJURIES TO REAL PROPERTY;

And first,

OF DISPOSSESSION, OR OUSTER OF THE FREE

HOLD.

I COME now to consider such injuries as affect that species of property which the laws of England have denominated real.

Real injuries then are principally six: 1. Ouster. 2. Trespass. 3. Nuisance. 4. Waste. 5. Subtraction. 6. Disturbance.

Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession; for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him that hath a right, to seek his legal remedy; in order to gain possession, and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods: 1. Abatement. 2. Intrusion. 3. Disseizin. 4. Discontinuance. 5. Deforcement.

makes entry,

1. An abatement is where a person dies seized of an inheritance, and before the heir or devisee enters, a stranger who has no right and gets possession of the freehold this entry of his is called an abatement, and he himself is denominated an abator.

2. Intrusion, which is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seized of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion.

3. Disseizin is a wrongful putting out of him that is seized of the freehold. The two former species of injury were by a wrongful entry where the possession was vacant; but this an attack upon him who is in actual possession, and turning him out of it.

These three species of injury, abatement, intrusion, and disseizin, are such wherein the entry of the tenant ab initio, as well as the continuance of his possession afterwards, is unlawful. But the two remaining species are where the entry of the tenant was at first lawful, but the wrong consists in the detaining of possession afterwards.

4. Discontinuance happens when he who hath an estate-tail, maketh a larger estate of the land than by law he is entitled to do: in which case the estate is good, so far as his power extends who made it, but no farther. As if tenant in tail

makes a feoffment in fee-simple, or for the life of the feoffee, or in tail; all which are beyond his power to make, for that by the common law extends no farther than to make a lease for his own life: in such case the entry of the feoffee is lawful during the life of the feoffor; but if he retains the possession after the death of the feoffor, it is an injury, which is termed a discontinuance; the ancient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discontinued.

5. Deforcement in its most extensive sense, is nomen generalissimum; a much larger and more comprehensive expression than any of the former: it then signifying the holding of any lands or tenements to which another person hath a right. So that this includes as well an abatement, an intrusion, a disseizin, a discontinuance, as any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possession. But, as contradistinguished from the former, it is only such a detainer of the freehold, from him that hath the right of property, but never had any possession under that right, as falls within none of the injuries which we have before explained.

The several species and degrees of injury by ouster being thus ascertained and defined, the next consideration is the remedy: which is, universally, the restitution or delivery of possession to the right owner; and, in some cases, damages also for the unjust amotion. The methods whereby these

remedies, or either of them, may be obtained, are

various.

I. The first is that extra-judicial and summary one, of entry by the legal owner, when another person, who hath no right, hath previously taken possession of lands or tenements. In this case the party entitled may make a formal, but peaceable, entry thereon, declaring that thereby he takes possession. Such an entry gives a man seizin, or puts into immediate possession him that hath right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himself by either descent or purchase.

This remedy by entry takes place in three only of the five species of ouster, viz. abatement, intrusion, and disseizin: for, as in these the original entry of the wrong-doer was unlawful, they may therefore be remedied by the mere entry of him who hath right. But, upon a discontinuance or deforcement, the owner of the estate cannot enter, but is driven to his action.

On the other hand, in case of abatement, intrusion, or disseizin, where entries are generally lawful, this right of entry may be tolled, that is, taken away, by descent. Descents, which take away entries, are when any one, seized by any means whatsoever of the inheritance of a corporeal hereditament, dies, whereby the same descends to his heir in this case, however feeble the right of the ancestor might be, the entry of any other person who claims title to the freehold is taken