But if the vendor knew the goods to be unsound, and have used any art to disguise them, or if they be in any shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodness.

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. But if cloth be warranted to be of such a length, when it is not, there an action on the case lies for damages; for that cannot be discerned by sight, but only by a collateral proof, the measuring it. Also, if a horse be warranted sound, and he wants the sight of an eye, though this seems to be the object of one's senses, yet as the discernment of such defects is frequently matter of skill, it hath been held that an action on the case lies to recover damages for this imposition.

Besides the special action on the case, there is also a peculiar remedy, entitled an action of deceit, to give damages in some particular cases of fraud, and principally where one man does any thing in the name of another by which he is deceived or injured; as, if one bring an action in another's name, and then suffer a nonsuit, whereby the plaintiff becomes liable to costs; or where one obtains or suffers a fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As, when by collusion the attorney of the tenant makes default in a real action, or where the sheriff returns that the tenant was summoned, when he was not so, and in either case he loses the land, the writ of deceit lies against the demandant, and also the attorney, or the sheriff and officers, to annul the former proceedings, and recover back the land. It also lies in the cases of warranty before mentioned, and other personal injuries committed contrary to good faith and honesty. But an action on the case for damages, in nature of a writ of deceit, is more usually brought upon these occasions and, indeed, it is the only remedy for a lord of a manor, in or out of ancient demesne, to reserve a fine or recovery had in the king's courts of lands lying within his jurisdiction; which would otherwise be thereby turned into frank fee. And this may be brought by the lord against the parties and cestuy qui use of such fine or recovery; and thereby he shall obtain judgment, not only for damages (which are usually remitted), but also to recover his court and jurisdiction over the lands, and to annul the former proceedings.

CHAPTER XII.

Of Ouster.

We now come to consider the injuries committed against that species of property denominated real. These injuries are of six sorts: viz. 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. Disseisin; 4. Discontinuance; 5. Deforcement.

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

2. The second species of injury by ouster, or amotion of possession from the freehold, is by 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 a term of life dies, seised of certain lands and tenements, and a stranger enters thereon, after such death of the tenant, and before any entry of him in remainder or reversion. This entry and interposition of the stranger differs from an abatement in thisthat an abatement is always to the prejudice of the heir, or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. For example; if A die seised of lands in fee-simple, and, before the entry of B his heir, C enter thereon, this is an abatement; but if A be tenant for life, with remainder to B in fee-simple, and, after the death of A, C enters, this is an intrusion. Also, if A be tenant for life in lease from B, or his ancestors, or be tenant by the courtesy, or in dower, the reversion being vested in B; and, after the death of A, C enters, and keeps B out of possession; this is likewise an intrusion. So that an in

trusion is always immediately consequent upon the determination of a particular estate; an abatement is always consequent upon the descent or devise of an estate in fee-simple. And in either case the injury is equally great to him whose possession is defeated by this unlawful occupancy.

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3. The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrong putting out of him that is seised of the freehold. It may be effected either in corporeal inheritances, or in incorporeal. Disseisin of things corporeal, as of houses, lands, &c. must be by entry and actual dispossession of the freehold: as, if a man enter either by force or fraud into the house of another, and turn, or at least keep him or his servants out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession; for the subject itself is neither capable of actual bodily possession, nor dispossession; but it depends on their respective natures, and various kinds; being in general nothing more than a disturbance of the owner in the means of coming at or enjoying them.

These three species of injury, abatement, intrusion, and disseisin, 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. Such is the injury of discontinuance; which happens when he who hath an estate-tail, makes a larger estate of the lands 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 make 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 entrance of the feoffee is lawful during the life of the feoffer; but if he retain the possession after the death of the feoffer, 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. The fifth and last species of injuries by ouster and privation. of the freehold, where the entry of the present tenant or possessor was originally lawful, but his detainer is now become unlawful, is that by deforcement. This, in its most extensive sense, is nomen generalissimum, a much larger and more comprehensive expression than any of the former; 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 disseisin, or 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. As in case where a lord has a seiguory, and lands escheat to him propter defectum sanguinis, but the seisin of the lands is withheld from him: here the injury is not abatement, for the right vests not in the lord as heir or devisee; nor is it intrusion, for it vests not in him who

hath the remainder or reversion; nor is it a disseisin, for the lord was never seised; nor does it at all bear the nature of any species of discontinuance; but, being neither of these four, it is therefore a deforcement.

If a man marry a woman, and during the coverture is seised of lands, and aliene, and die; is disseised and die; or die in possession; and the alienee, disseisor, or heir, enter on the tenements, and do not assign the widow her dower; this is also a deforcement to the widow, by withholding lands to which she hath a right.

In like manner, if a man lease lands to another for a term of years, or for the life of a third person, and the term expire by surrender, efflux of time, or death of the cestuy qui vie; and the lessee, or any stranger, who was at the expiration of the term in possession, hold over, and refuse to deliver the possession to him in remainder or reversion; this is also a deforcement.

Deforcements may also arise upon a breach of a condition in law: as, if a woman give lands to a man by deed, to the intent that he marry her, and he will not, when thereunto required, but continues to hold the lands; this is such a fraud on the man's part, that the law will not allow it to divest the woman's right of possession, though, his entry being lawful, it does divest the actual possession, and thereby becomes a deforcement.

Deforcements may also be grounded on the disability of the party deforced: as, if an infant make an alienation of his lands, and the alienee enter and keep possession; now, as the alienation is voidable, this possession as against the infant (or, in case of his decease, as against his heir) is after avoidance wrongful, and therefore a deforcement. The same happens, when one of nonsane memory alienes his lands or tenements, and the alienee enters and holds possession; this also may be a deforcement.

Another species of deforcement is, where two persons have the same title to land, and one of them enters and keeps possession against the other: as, where the ancestor dies seised of an estate in fee-simple, which descends to two sisters as coparceners, and one of them enters before the other, and will not suffer her sister to enter and enjoy her moiety; this is also a deforcement.

Deforcement may also be grounded on the non-performance of a covenant real: as, if a man seised of lands covenant to convey them to another, and neglect or refuse so to do, but continues possession against him; this possession, being wrongful, is a deforcement: whence, in levying a fine of lands, the persons against whom the fictitious action is brought, upon a supposed breach of covenant, is called the deforciant. And, lastly, by way of analogy, keeping a man by any means out of a freehold office is construed to be a deforcement; though, being an incorporeal hereditament, the deforciant has no corporeal possession. So that whatever injury, in withholding the possession of a freehold, is not included under one of the four former heads, is comprised under this of deforcement.

The several species and degrees of injury by ouster being thus 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:

1. The first is the extra-judicial and summary one of entry by the legal owner, when another person, who hath no right, hath previously taken possession of lands and tenements. In this case the party entitled may make a formal, but peaceable entry thereon, declaring that thereby he takes possession; or he may enter on any part of it in the same county, declaring it to be in the name of the whole but if it lie in different counties, he must make different entries. Also, if there be two disseisors, the party disseised must make his entry on both; or if one disseisor have conveyed the lands with livery to two distinct feoffees, entry must be made on both: for as their seisin is distinct, so also must be the act which divests that seisin.

If the claimant be deterred from entering by menaces or bodily fear, he may make claim, as near to the estate as he can, with the like forms and solemnities; which claim is in force for only a year and a day. And this claim, if it be repeated once in the space of every year and day (which is called continual claim), has the same effect with, and in all respects amounts to, a legal entry.

This remedy by entry takes place in three only of the five species of ouster, viz. abatement, intrusion, and disseisin: 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: for herein the original entry being lawful, and thereby an apparent right of possession being gained, the law will not suffer that right to be overthrown by the mere act or entry of the claimant. Yet a man may enter on his tenant by sufferance: for such tenant hath no freehold, but only a bare possession; which may be defeated, like a tenancy at will, by the mere entry of the owner. But if the owner think it more expedient to suppose or admit such tenant to have gained a tortuous freehold, he is then remediable by writ of entry.

On the other hand, in case of abatement, intrusion, or disseisin, 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, seised 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 away; and he cannot recover possession against the heir by this summary method, but is driven to his action to gain a legal seisin of the estate.