that he performs his business in a workmanlike manner; in which, if they fail, an action lies to recover damages for such breach of their general undertaking. But if I employ a person to transact any of these concerns, whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages a special agreement is required. Also, if an innkeeper, or other victualler, hangs out a 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 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 also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest.

In contracts likewise for the sale of goods in a shop, it is understood that the seller undertakes that the commodity he sells is his own, and if it proves otherwise, an action lies against him, to exact damages for this deceit. But except in special circumstances, as when the vendor affirms, directly or indirectly, that the goods sold are his property, there is no implied warranty of title on the sale of goods. If the article be bought expressly for a particular purpose, there is an implied warranty that it shall be reasonably fit for that purpose. Thus in contracts for provisions, it is always implied that they are wholesome; and, if they be not, an action will lie.

But the law does not in general imply any warranty by the seller as to the quality of goods sold by him. The rule is caveat emptor; so that no liability is incurred by the seller by reason of bad quality or defects, unless there be an express warranty or fraud. But if he that sells anything does upon the 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 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: for it is then made without any consideration; neither does the buyer then take the goods upon the credit of the vendor

Yet if the vendor knew the goods to be unsound, and used any art to disguise them, or if they are 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 will be answerable for their goodness. A general warranty will not extend to guard against defects that are the object of one's senses, as if a horse be warranted perfect, and wants either a tail or an ear. But if cloth is warranted to be of such a length, when it is not, there an action lies for damages; for that cannot be discerned by sight, but only by a collateral proof, the measuring it. So 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 may be matter of skill, an action lies to recover damages for this imposition.

CHAPTER VII.

OF INJURIES TO REAL PROPERTY; AND, FIRST, OF DISPOSSESSION, OR OUSTER.

THE injuries that affect real property are principally six:I. Ouster; II. Trespass; III. Nuisance; IV. Waste; V. Subtraction; VI. Disturbance.

Ouster, or dispossession, is an injury that carries with it the amotion of possession; for thereby the wrong-doer gets into the actual occupation of the land, and obliges him that has a right to seek his legal remedy, in order to regain possession, the importance of which, as the sole foundation of title, was pointed out in the second book of this treatise.

In every complete title to lands, there are two things necessary; the possession, and the right or property therein: or as it is expressed in Fleta, juris et seisinæ conjunctio. Now if the possession be severed from the property, if A has the jus proprietatis, and B by some unlawful means has gained possession of the lands, this is an injury to A, for which the law gives a remedy, by putting him in possession. This it now effects in one way, applicable to every species of dispossession.

The same result was formerly attained, by different means applicable to the particular circumstances of each case. Thus, if B, the wrong-doer, had obtained the possession either by fraud or force, he had only a bare or naked possession, without any shadow of right; A, therefore, who had both the right of property and the right of possession, might, as he still may, put an end to his title at once, by the summary method of entry. But if B the wrongdoer had died seised of the lands, then B's heir was considered to have advanced one step further towards a good title: he had not only a bare possession, but also an apparent jus possessionis, or right of possession, the law presuming that the possession which is transmitted from the ancestor to the heir is a rightful possession, until the contrary be shown; and therefore A was not allowed by mere entry to evict the heir of B. The descent cast, as it was called, was said to toll or defeat the right of entry, and A was driven to his action to remove the possession of the heir, though his entry alone would have dispossessed the ancestor. This was effected either by a writ of entry, or an assize, which were thence termed possessory actions; serving only to regain that possession, whereof the demandant or his ancestors had been unjustly deprived by the tenant or possessor of the land, or those under whom he claimed. They decided nothing with respect to the right of property; only restoring the demandant to that situation, in which he had been, or by law ought to have been, before the dispossession committed.*

But the right of possession, which was thus recovered, though it carries with it a strong presumption, is not always conclusive evidence of the right of property, which may still subsist in another man. For as one man may have the possession, and another the right of possession, so one man may have the right of possession, and so not be liable to eviction, and another may

*On this subject, I must refer the student to our ancient books, in which he will find frequent mention of the degrees within which such writs were brought; reminding him, in passing that it was upon one of them that common recoveries were grounded; these, being fictitious actions brought against the tenant of the freehold, usually called the tenant to the præcipe, or writ of entry, in which by collusion the demandant recovered the land. And I may add, that it was by another form of this writ that a widow recovered her dower.

have the right of property. This right of property could not formerly be otherwise asserted than by a writ of right; which lay concurrently with the other actions: and also lay after them, being as it were an appeal to the mere right, when judgment had been had as to the possession. If, indeed, the right of possession had been lost by lapse of time, or by judgment against the true owner in a possessory action, there was no other choice: this was the only remedy that could be had; and it was of so forcible a nature, that it overcame all obstacles, and cleared all objections that might have arisen to cloud and obscure the title.

The writ of right lay only to recover lands in fee simple. There were other writs in the nature of a writ of right in which the fee simple was not demanded; and in others not land, but some incorporeal hereditament. But they all applied to estates of freehold; and formerly, therefore, Ouster, or dispossession, was treated as either of the freehold or of chattels real: a distinction then of the utmost importance, not only because the remedies for an ouster of the freehold were confined in their use to that species of property, but because those which the law afforded for recovery of the possession of chattels real were totally inapplicable to all estates of freehold. The modern action simply to recover possession, has come to supply the place of all these different remedies; and how this result has been obtained we shall find by considering briefly the method in which the law remedied an ouster of chattels real, that is, of an estate for years.

Ouster, then, or amotion of possession, from an estate for years, happens only by an ejection, or turning out, of the tenant from the occupation of the land during the continuance of his term. For this injury there was formerly provided the writ of ejectione firma, which was an action of trespass in ejectment, and lay where lands were let for a term of years: and afterwards the lessor, reversioner, remainder-man, or any stranger, ejected or ousted the lessee of his term. He could thereby call the defendant to answer for entering on the lands so demised to him for a term that was not yet expired, and ejecting him; and in this action he recovered back his term, or the remainder of it, with damages.

This mode of proceeding became in time the common method of

trying the title to lands, and it may not, therefore, be improper to delineate with some minuteness its history, the manner of its process, and the principles whereon it was grounded.

An action for the damage sustained by reason of the breach of the contract contained in his lease was originally the only remedy which the tenant had for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior to that of the lessor, though the lessee might still maintain this action against the lessor, yet he could not by any means recover the term itself. But when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party injured, the courts of law also adopted the same method of doing complete justice: and in the prosecution of a writ of ejectment, introduced a new species of remedy, viz., a judgment to recover the term, and a writ of possession thereupon.

The better to apprehend the contrivance, we must recollect that ejectment was in its origin an action brought by one who had a lease for years, to repair the injury done him by dispossession. In order, therefore, to convert it into a method of trying titles to the freehold, it was first necessary that the claimant should take possession of the lands, to empower him to constitute a lessee for years, who might be capable of receiving this injury of dispossession. For it was an offence, called maintenance, to convey a title to another when the grantor was not in possession of the land. When, therefore, a person who had a right of entry into lands determined to acquire that possession which was wrongfully withheld by the tenant therein he made, as by law he may, a formal entry on the premises; and being so in the possession of the soil, he there, upon the land, sealed and delivered a lease for years to some third person or lessee and having thus given him entry, left him in possession of the premises. This lessee was to stay upon the land till the prior tenant, or he who had the previous possession, ousted him; or till some other person, either by accident or by agreement beforehand, came upon the land, and turned him out or ejected him. For this injury the lessee was entitled to his action of ejectment against the tenant, or this casual ejector,