c. 16, gives an action of account against the executors and administrators (h). 11 Rep. 99. Cro. Eliz. 625. Comb. 69. The last class of contracts implied by reason and construc- Undertaking tion of law, arises upon this supposition, that every one who office or employment. undertakes any office, employment, trust, or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence, and skill. And if by his want of either of those qualities any injury accrues to individuals, they have their remedy in damages by a special action on the case. If the sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereof; in both these cases, the party Moore, 431. aggrieved shall have an action on the case for damages, to be assessed by a jury. If a sheriff, or gaoler, suffers a prisoner, who is taken upon mesne process, (that is, during the pendency of a suit,) to escape, he is liable to an action on the case. But, if after judgment, a gaoler or a sheriff, permits a debtor to escape, who is charged in execution for a certain sum, the debt immediately becomes his own, and he is compellable by an action of debt, being a sum liquidated, and ascertained, to satisfy the creditor his whole demand. An advocate, or attorney, who betrays the cause of his client, or being retained, neglects to appear at the trial, by which the cause miscarries, is liable to an action on the case for a reparation to his injured client. There is also in law an implied contract with a common innkeeper, to secure his guests goods in his inn; with a common carrier, or barge-master, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common tailor, or other workman, that he performs his business in a workmanlike manner, in Bro. Abr. tit. 2 Inst. 382. Finch. L. 188. Liability of innkeeper, carrier, farrier, or other workman. (k) By 3 & 4 Wm. 4, c. 42, s. 2, actions of trespass or case may be maintained by the executors or administrators of any person deceased for any injury to the real estate of any such person committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such person, and provided such action be brought within one year after the death; and the damages, when recovered, shall be part of the personal estate of such person; and actions of trespass or case may be maintained against executors or administrators for any wrong committed by the deceased in his lifetime to another in respect of his property, real or personal, so as such injury shall have been committed within six calendar months before such person's death, and so as such action shall be brought within six calendar months after such executors or administrators shall have taken upon themselves the administration of the estate and effects; and the damages to be recovered in such action shall be payable in like order of administration as simple contract debts. By s. 14, actions of debt on simple contract shall be maintainable in any court of common law against any executor or administrator. 11 Rep. 54. 1 Saund. 324. 1 Ventr. 333. 10 Rep. 56. which if they fail, an action on the case 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. If an inkeeper 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 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 sales, it is also understood that the seller undertakes that the commodity he sells is his own; and if it proves otherwise, an action on the case lies against him to exact damages for this deceit. In contracts for provisions, it is always implied that they are wholesome; and if they are not, the same remedy may be had. If upon the sale of any thing, the seller warrants it 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 Finch. L. 189. void warranty, for it is then made without any consideration; nor does the buyer then take the goods upon the credit of the vendor. The warranty can only reach to things in being at the time of warranty made, and not to things in futuro; as that a horse is sound at the buying of him; not that he will be sound two years hence. But if the vender knew the goods 2 Roll. Rep. 5. 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 vender is answerable for their goodness. F. N. B. 94. 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 Finch. L. 189. warranted to be of such a length, when it is not; or if a horse is warranted sound, and he wants the sight of an eye, of these cases, an action on the case lies for damages. Salk. 611. There is also a peculiar remedy, entitled an action of de- Action of deceit ceit (i). But an action on the case for damages, in nature of RN. 95. Booth, 253. a writ of deceit, is more usually brought; and is the only remedy for the lord of a manor, in or out of ancient demesne, Co. Entr. 8. to reverse a fine or recovery had in the king's courts, of 3 Lev. 419. lands lying within his jurisdiction, which would otherwise be thereby turned into frank fee. This may be brought by the lord against the parties, and cestui 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 Rast. Entr. court and jurisdiction over the lands, and to annul the former 3 Lev. 415. proceedings (j). Lutw.711,749. 100 b. CHAPTER X. OF INJURIES TO REAL PROPERTY, AND FIRST, OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD, AND HEREIN OF ABATEMENT, REAL injuries, or injuries affecting real rights, are principally Injuries affectouster, trespass, nuisance, waste, subtraction, and disturbance. ing real rights. Ouster, or dispossession, is a wrong or injury that carries Ouster. 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 has a right to seek his legal remedy, in order to gain possession, and damages for the injury sustained. It be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods: abatement, intrusion, disseisin, discontinuance, or deforcement. may An abatement is where a person dies seised of an inherit- By abatement. ance, and before the heir or devisee enters, a stranger who has no right makes entry, and gets possession of the freehold; this (i) By 3 & 4 Wm. 4, c. 27, s. 36, the writ of deceit was abolished. (j) By 3 & 4 Wm. 4, c. 74, s. 4, fines and recoveries of lands in ancient demesne already levied, or suffered in a superior court, may be reversed as to the lord, by writ of deceit; but as against the parties thereto, and persons claiming under them, shall be valid, as if not reversed as to the lord. Finch. L. 195. entry of him is called an abatement; and he himself is denominated an abator. By intrusion. 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 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 reCo. Litt. 277. version. 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. F. N. B. 203, 204. By disseisin. Co. Litt. 277. Ibid. 181. Litt. s. 588, 589. By discontinu ance. Disseisin is a wrongful putting out of him that is seised of the freehold. 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. Disseisin may be of things corporeal, as by entering, and either by force or fraud, turning or keeping a man or his servants out of possession; but of incorporeal inheritances, it can only amount to a disturbance of the owner in the means of coming at or enjoying them. The ancient law books mention other methods of working a disseisin of freehold rents. But all these were only at the choice of the party injured; if for the sake of trying the right he chose to suppose himself disseised; otherwise, as there can be no actual dispossession, he could not be compulsively disseised of any incorporeal hereditament. Abatement, intrusion, and disseisin are, where the entry of the tenant ab initio, as well as the continuance of his possession afterwards, is unlawful. The two remaining species are when the entry of the tenant was at first lawful, but the wrong consists in detaining possession afterwards. Such is the injury of discontinuance, which happens when he who has an estate 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 for his own life (a); in such case, the entry of the feoffee is lawful during the life of the feoffer; but if he retains possession after the death of the feoffer, it is an injury, which is (a) See now 3 & 4 Wm. 4, c. 74, ante, p. 138. 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 (b). Deforcement in its most extensive sense is nomen gene- Deforcement. ralissimum; a more comprehensive expression than any of the former; it signifying the holding of any lands or tenements to Co. Litt. 277. which another has a right. It includes as well an abatement, an intrusion, a disseisin, or a discontinuance, or any other species of wrong whatever, whereby he that has a 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 has the right of property, but never had any possession under that right, as falls within none of the injuries before explained. 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. entry of the The first remedy is that of entry by the legal owner, when Of the remedy another person who has no right, has taken possession of lands for ouster by or tenements. The party entitled may make a formal, but legal owner. peaceable entry therein, declaring that thereby he takes possession. Such an entry gives a man seisin, or puts into im- Co. Litt. 15. mediate possession him that has right of entry on the estate, and thereby makes him complete owner, and capable of conveying it from himself by either descent or purchase (c), Limitations. This rule has some exceptions in favour of persons under Statute of legal disabilities. By the Statute of Limitations, 21 Jac. 1, c. 16, no entry shall be made, but within twenty years after the right has accrued (d), and by 4 & 5 Ann. c. 16, no entry shall be of force to satisfy the said statute, or to avoid a fine levied of lands unless an action be thereupon commenced within one year, and prosecuted with effect. If one turns or keeps another out of possession forcibly, this is an injury of both a civil and criminal nature. The civil is remedied by immediate restitution, which puts the ancient possessor in statu quo; the criminal injury or public wrong by breach of the king's peace, Entry must be peaceable. (b) By 3 & 4 Wm. 4, c. 27, s. 39, no descent cast, discontinuance, or warranty, happening after 31st December, 1833, shall toll or defeat any right of entry or action for recovery of land. the (c) Entry may be made if the premises be vacant, and provided the entry be peaceable, but the usual and safe course is by ejectment; see note (a), chap. 382. (d) But see now the new statute of limitations, 3 & 4 Wm. 4, c. 27, abstracted in note (c), ante, p. 194. |