BOOK III. remedy for a lord of a manor, in or out of antient demcfne, to reverse 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 ceftuy que use of fuch fine or recovery; and thereby he fhall 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 possible injury to what is by far the moft confiderable fpecies of perfonal property; viz. that which consists in action merely, and not in poffeflion. Which finishes our inquiries into fuch wrongs as may be offered to perfonal property, with their feveral remedies by fuit or action.

A Raft. Entr. 100. b. 3 Lev. 415. Lutw. 711. 749•

CHAPTER THE TENTH.

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

COME now to confider such injuries as affect that species 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; I. 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 feek his legal remedy; in order to gain poffeffion, and damages for the injury fuftained. 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."

I. AND, firft, an abatement is where a perfon dies feifed of an inheritance, and before the heir or devisee enters, a stranger

who

who has no right makes entry, and gets poffeffion of the freehold this entry of him is called an abatement, and he himfelf is denominated an abator 2. It is to be obferved that this expreffion, of abating, which is derived from the French, and fignifies to quash, beat down, or destroy, is used by our law in three fenfes. The firft, which feems to be the primitive fenfe, is that of abating or beating down a nufance, of which we spoke in the beginning of this book"; and in a like fenfe it is ufed in ftatute Weftin. 1. 3 Edw. I. c. 17. where mention is made of abating a caftle or fortrefs; in which cafe it clearly fignifies to pull it down, and level it with the ground. The fecond fignification of abatement is that of abating a writ or action, of which we shall fay more hereafter here it is taken figuratively, and fignifies the overthrow or defeating of fuch writ, by fome fatal exception to it. The laft fpecies of abatement is that we have now before us; which is alfo a figurative expreffion to denote that the rightful poffeflion or freehold of the heir or devifee is overthrown by the rude intervention of a stranger.

THIS abatement of a freehold is fomewhat fimilar to an immediate occupancy in a state of nature, which is effected by taking poffeflion of the land the fame inftant that the prior occupant by his death relinquifhes it. But this, however agreeable to natural juftice, confidering man merely as an individual, is diametrically oppofite to the law of fociety, and particularly the law of England: which, for the preservation of public peace, hath prohibited as far as poffible all acquifitions by mere occupancy: and hath directed that lands, on the death of the prefent poffeffor, fhould immediately vest either in fome perfon, exprefsly named and appointed by the deceased, as his devifee; or, on default of fuch appointment, in fuch of his next relations as the law hath selected and pointed out as his natural reprefentative or heir. Every entry therefore of a mere ftranger by way of intervention between the ancestor and heir or perfon next entitled, which

a Finch. L. 195.

page 5.

keeps

keeps the heir or devifee out of poffeffion, is one of the highest injuries to the right of real property.

2. THE fecond fpecies of injury by oufter, or amotion of poffeflion from the freehold, is by intrufion: which is the entry of a ftranger, after a particular eftate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth feifed of certain lands and tenements, and a stranger entereth thereon, after fuch death of the tenant, and before any entry of him in rcmainder or reverfion. This entry and interpofition of the ftranger differ from an abatement in this; that an abatement is always to the prejudice of the heir, or immediate devifee; an intrusion is always to the prejudice of him in remainder or reverfion. For example; if A dies feifed of lands in feefimple, 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-fimple, and, after the death of A, C enters, this is an intrufion. Alfo if A be tenant for life on leafe from B, or his ancestors, or be tenant by the curtefy, or in dower, the reverfion being vefted in B; and after the death of A, C enters and keeps B out of poffeflion, this is likewise an intrufion. So that an intrufion is always immediately confequent upon the determination of a particular eftate; an abatement is always confequent upon the defcent or devise of an eftate in fee-fimple. And in either cafe the injury is equally great to him whofe poffeffion is defeated by this unlawful occupancy.

3. THE third fpecies of injury by oufter, or privation of the freehold, is by diffeifin. Difleifin is a wrongful putting out of him that is feifed of the freehold . The two former fpecies of injury were by a wrongful entry where the poffeffion was vacant; but this is an attack upon him who is in actual poffeffion, and turning him out of it. Thofe were an oufter from a freehold in law; this is an ouster from a freehold in deed. Diffeifin may be effected either incorporeal inheritances,

e Co. Litt. 277. F. N. B. 203, 204.

Co. Litt. 277.

or

or incorporeal. Dieifin, of things corporeal, as of houses, lands, &c. must be by entry and actual difpoffeffion of the freehold; as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or his fervants out of poffeffion. Diffeifin of incorporeal hereditaments cannot be an actual dispossession; for the fubje&t itself is neither capable of actual bodily poffeffion, nor difpoffeffion : 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. With regard to freehold rent in particular, our antient law-books f mention five methods of working a diffeifin thereof: 1. By enclofure, where the tenant fo enclofeth the house or land, that the lord cannot come to diftrein thereon, or demand it: 2. By forestaller, or lying in wait: when the tenant befetteth the way with force and arms, or by menaces of bodily hurt affrights the leflor from coming: 3. By refeous; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin; when the tenant replevies the diftrefs at fuch time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All, or any of thefe circumstances amount to a diffeifin of rent; that is, they wrongfully put the owner out of the only poffeffion, of which the fubject-matter is capable, namely, the receipt of it. But all these difleifins, of hereditaments incorporeal, are only fo at the election and choice of the party injured; if, for the fake of more easily trying the right, he is pleased to suppose himself diffeifed. Otherwife, as there can be no actual difpoffeffion, he cannot be compulsively diffeifed of any incorporeal hereditament.

AND fo too, even in corporeal hereditaments, a man may frequently fuppofe himself to be diffeifed, when he is not fo in fact, for the fake of entitling himself to the more easy and commodious remedy of an allife of novel diffeifin, (which will be explained in the fequel of this chapter) inftead of being

e Co. Litt. 181.

f Finch. L.165,166.Litt. §.237,&c.

8 Litt. §. 588, 589.