Action of deceit. hath been held that an action on the case lieth, to recover damages for this imposition (ƒ). Besides the special action on the case, there is also a peculiar remedy, entitled an action of deceit (g) (40), to give [*166] damages in some particular cases of fraud; and principally where one man does anything in the name of another, by which he is deceived or injured (h); as if one brings an action in another's name, and then suffers a nonsuit, whereby the plaintiff becomes liable to costs; or where one obtains or suffers a fraudulent recovery (41) 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 (42), 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 his officers, to annul the former proceedings and recover back the land (i). It also lies in the cases of warranty before mentioned, and other personal injuries committed contrary to good faith (43) and honesty (k). But an action on the case, for damages, in nature of a writ of deceit, is more usually brought upon these occasions (7). And indeed it is the only (m) remedy for a lord of a manor, in or out of ancient demesne, to reverse a fine or recovery had in the king's courts (44) of lands lying within his jurisdiction; which would otherwise be thereby turned into frank fee. And this may be brought by Case, the more usual remedy. (f) Salk. 611. (g) F. N. B. 95. (h) Law of Nisi Prius, 30. (i) Booth, Real Actions, 251; Rast. (40) The writ of deceit is abolished by statute of 3 & 4 Will. IV. c. 27, s. 36. (41) Fines and common recoveries, as assurances of lands or tenements, have been abolished by the statute of 3 & 4 Will. IV. c. 74. (42) Real and mixed actions are, with one or two exceptions, abolished: see ante, the note to p. 117, and post, note to p. 167. (43) By the 6th section of the statute of 9 Geo. IV. c. 14, it is enacted, that Entr. 221, 222. See page 405. (k) F. N. B. 98. (1) Booth, 253; Co. Entr. 8. no action shall be maintained whereby to charge any person upon any representation made relative to the character, conduct, credit, or dealings of any other person, to the intent that such other person may obtain credit, money, or goods thereupon, unless such representation be made in writing, signed by the party to be charged therewith. (44) See note 41 in this page; see also the 4th and 5th sections of statute 3 & 4 Will. IV. c. 74. the lord against the parties and cestuy que 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 (n). 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. (n) Rast. Entr. 100, b; 3 Lev 415; Lutw. 711, 749. CHAPTER X. OF INJURIES TO REAL PROPERTY: AND, Injuries affecting real rights. I. Ouster; of the freehold; I COME now to consider such injuries as affect that species of property which the laws of England have denominated real (1); as being of a more substantial and permanent nature than those transitory rights of which personal chattels are the object. Real injuries, then, or injuries affecting real rights, 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 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 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. All of which in their order, and afterwards their respective remedies (2), will be considered in the present chapter. (1) See vol. ii. ch. ii. p. 16. in asserting them become irrecoverable, than that long possession should be liable to disturbance. By the 36th section of the statute of 3 & 4 Will. IV. c. 27, no real or mixed action, except for dower, quare impedit, or an ejectment, can now be brought. Much of the learning in this chapter, therefore, is now obsolete. : 1. And, first, an abatement is where a person dies seised 1. By abatement. of an inheritance, and before the heir or devisee enters, a stranger *who has no right makes entry, and gets possession [*168 ] of the freehold this entry of him is called an abatement, and he himself is denominated an abator(a). It is to be observed that this expression, of abating, which is derived from the French, and signifies to quash, beat down, or destroy, is used by our law in three senses. The first, which seems to be the primitive sense, is that of abating or beating down a nuisance, of which we spoke in the beginning of this book (b); and in a like sense it is used in statute Westm. 1, 3 Edw. I. c. 17, where mention is made of abating a castle or fortress; in which case it clearly signifies to pull it down, and level it with the ground. The second signification of abatement is that of abating a writ or action, of which we shall say more hereafter: here it is taken figuratively, and signifies the overthrow or defeating of such writ, by some fatal exception to it. The last species of abatement is that we have now before us; which is also a figurative expression to denote that the rightful possession or freehold of the heir or devisee is overthrown by the rude intervention of a stranger. This abatement of a freehold is somewhat similar to an immediate occupancy in a state of nature, which is effected by taking possession of the land the same instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice (3), considering man merely as an individual, is diametrically opposite to the law of society, and particularly the law of England; which, for the preservation of public peace, hath prohibited as far as possible all acquisitions by mere occupancy (4); and hath directed that lands, on the death of the present possessor, should immediately vest either in some person, expressly named and appointed by the deceased as his devisee; or, on default of such appointment, in such of his next relations as (a) Finch, L. 195. (3) See, however, the note to vol. ii. p. 11. (4) Though our author has repeatedly told us, occupancy was the original (b) Page 5. title to all property. See vol. i. p. 138; the law hath selected and pointed out as his natural representative or heir. Every entry therefore of a mere stranger by way of intervention between the ancestor and heir or [*169] person next entitled, which keeps the heir or devisee out of possession, is one of the highest injuries to the right of real property. 2. By intrusion. 3. By disseisin. 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 term of life dieth seised 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 (c). This entry and interposition of the stranger differ from an abatement in this; that 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. dies seised of lands in fee-simple, and before the entry of B. his heir, C. enters 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 on lease from B. or his ancestors, or be tenant by the curtesy, 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 intrusion 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. 3. The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrongful putting out of him that is seised of the freehold (d). The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack upon him who is in actual possession, and turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in deed. Disseisin may be effected either in cor (c) Co. Litt. 277; F. N. B. 203, (d) Co. Litt. 277. |