he performs his business in a workmanlike manner: in which if they fail, an action on the cafe lies to recover damages for fuch breach of their general undertaking. But if I employ [ 166 ] a person to transact any of these concerns, whofe common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a fpecial agreement is required. Alfo, if an inn-keeper, or other victuailer, hangs out a fign and opens his house for travellers, it is an implied engagement to entertain all perfons who travel that way; and upon this univerfal affumpfit an action on the cafe will lie againft him for damages, if he without good reason refuses to admit a traveller. If any one cheats me with falfe cards or dice, or by falfe weights and measures, or by felling me one commodity for another, an action on the cafe alfo lies against him for damages upon the contract which the law always implies, that every tranfaction is fair and honeft. In contracts likewife for fales, it is constantly understood that the feller undertakes that the commodity he fells is his own; and if it proves otherwise, an action on the cafe lies against him, to exact damages for this deceit. In contracts for provifions it is always implied that they are wholesome; and, if they be not, the fame remedy may be had. Alfo if he, that felleth any thing, doth upon the fale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not fo, he fhall make compenfation to the buyer: else it is an injury to good faith, for which an action on the cafe will lie to recover damages. The warranty must be upon the fale; for if it be made after, and not at the time of the fale, it is a void warranty for it is then made without any confideration; neither does the buyer * ; 1 Rep. 54- 1 Saund. 324. 21 Ventr. 333. a 10 Rep. 56. b F. N. B. 94. slightest evidence of this nature. And the court of common pleas have determined, that if a perfon, who has notice of fuch conditions, fends his goods without paying the extraordinary premium, he is guilty of a fraud, and if they are loft, he shall not recover even to the extend of 51. or the fum limited, 4 Burr. 2298, Hen. Bl. 298. then then take the goods upon the credit of the vendor. Also the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro: as, that a horfe is found at the buying of him; not that he will be found two years hence (8). But if the vendor knew the goods to be unfound, and hath ufed any art to difguife them, or if they are in any shape different from what he reprefents them to be [165] to the buyer, this artifice fhall be equivalent to an exprefs warranty, and the vendor is anfwerable for their goodness. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's fenfes, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this cafe be blind. But if cloth is warranted to be of fuch a length, when it is not, there an action on the cafe lies for damages; for that cannot be dif cerned by fight, but only by a collateral proof, the measuring it. Alfo if a horfe is warranted found, and he wants the fight of an eye, though this feems to be the object of one's fenfes, yet as the difcernment of fuch defects is frequently matter of skill, it hath been held that an action on the cafe lieth, to recover damages for this impofition . BESIDES the fpecial action on the cafe, there is also a peculiar remedy, intitled an action of deceit, to give damages in fome particular cafes 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 brings an action in another's name, and then fuffers a non-fuit, whereby the plaintiff becomes liable to cofts: or where one obtains or fuffers a (8) There feems to be no reafon or principle, why, upon a fufficient confideration, an exprefs warranty that a horse should con. tinue found for two years, fhould not be valid. Lord Mansfield declared, in a cafe in which the fentence in the text was cited, "there * is no doubt but you may warrant a future event." Doug. 707. fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As when by collufion the attorney of the tenant makes default in a real action, or where the fheriff returns that the tenant was fummoned when he was not fo, and in either cafe he lofes the land, the writ of deceit lies again't the demandant, and also the attorney or the fheriff and his officers; to annul the former proceedings and recover back the land. It alfo lies in the cafes of warranty before-mentioned, and other perfonal injuries committed contrary to good faith and honefty *. But an action on the cafe, for damages, in nature of a writ of deceit, is more usually brought upon these occafions. And indeed it is the only m remedy for a lord of a manor, in or out of antient de-[ *166] mefne, to reverfe a fine or recovery had in the king's courts of lands lying within his jurifdiction; which would otherwife be thereby turned into frank fee. And this may be brought by the lord against the parties and celuy que use of fuch fine or recovery; and thereby he shall obtain judgment not only for damages (which are ufually remitted) but also to recover his court, and jurifdiction over the lands, and to annul the former proceedings ". THUS much for the non-performance of contracts exprefs or implied; which includes every poffible injury to what is by far the most confiderable fpecies of perfonal property; viz. that which confifts in action merely, and not in poffeffion. Which finishes our inquiries into fuch wrongs as may be offered to perfonal property, with their feveral remedies by fuit or action. CHAPTER THE TENTH. OF INJURIES TO REAL PROPERTY, AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD. COME now to confider fuch injuries as affect that fpecies of property which the laws of England have denominated real; as being of a more fubftantial and permanent nature, than those transitory rights of which perfonal chattels are the object. REAL injuries then, or injuries affecting real rights, are principally fix; 1. Oufter; 2. Trefpafs; 3. Nufance; 4. Wafte; 5. Subtraction; 6. Disturbance. OUSTER, or difpoffeffion, is a wrong or injury that carries with it the amotion of poffeffion: for thereby the wrongdoer 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 poffeffion, and damages for the injury sustained. And fuch oufter, or difpoffeffion, may either be of the freehold, or of chattels real. Oufter of the freehold is effected by one of the following methods, 1. Abatement; 2. Intrusion; 3. Diffeifin; 4. Difcontinuance; 5. Deforcement. All of which in their order, and afterwards their refpective remedies, will be confidered in the prefent chapter. 1. AND, first, an abatement is where a perfon dies feised of an inheritance, and before the heir or devisee enters, a stranger who |