shall reimburse the possessor for the sums he has expended, and indemnify him in other respects."

"344. The second case is that to which Papinian refers in the latter part of the law sumptuum in prædiam factorum exemplo: where the possessor has incurred any necessary expenses for the preservation of the thing, (other than ordinary repairs,) which the proprietor would have been obliged to incur, if the possessor had not, the owner cannot compel the possessor to restore the thing, unless he first reimburses to this possessor the amount thus expended by him, with the interest thereon, if it exceeds the fruits which the possessor has received, which are to be set off against it.

"We have excepted from the operation of our principle the expenses of ordinary repairs, because these are a charge upon the fruits, and for this reason, a bona fidei possessor, who receives for his own account the fruits before the judicial demand, without being subject in this respect to make restitution to the owner, ought not to claim against the latter the expenses of ordinary repairs incurred by him during the same period, these expenses being a charge upon the usufruct which he has enjoyed.

"345. There is a distinction between a bonæ fidei and a malæ fidei possessor, in respect to the expenses which they have laid out, which were not indispensably necessary, but only useful, and which have merely contributed to ameliorate the property.

"In respect to a bonæ fidei possessor, the owner cannot compel him to restore the property, without first reimbursing the expenses, although they were not indispensably necessary to the preservation of the property, and have merely augmented its value.

"Justinian gives an example of this principle in the case of a bonæ fidei possessor, who has erected a building upon the land; and he decides that the owner cannot recover the land unless he first offers to reimburse this expense to the occupant: Si quis in alieno solo ex sua materia domum ædificaverit......illud constat, si in possessione constituto ædificatore soli dominus petat domum suam esse, nec solvat pretium materiæ et mercedes fabrorum, posse eum per exceptionem doli mali repelli, utique si bonæ fidei possessor fuerit qui ædificavit. Instit. tit. de rer. div. § 30.

"346. This principle, that a bona fidei possessor ought to be reimbursed the expenses of utility which he has laid out upon the property, is subject to several exceptions, which must be considered as implied in the text we have just cited from the Institutes, as Vinnius has remarked in his commentary.

"The first is, that the possessor ought not to be reimbursed precisely

and absolutely for the amount of the said expenses, but only for the amount which they have augmented the property in value.

"This is what Paulus teaches us in the case of a bona fidei purchaser who has erected a building upon land which had been previously mortgaged; Paulus says, Jus soli superficiem secutam videri....sed bona fide possessores non aliter cogendos ædificium restituere, quàm sumptus in extructione erogatos, quatenus res pretiosior facta est, reciperent. Lib. 59. § 2. D. d pign.

"This results from the principle on which is founded the obligation of the proprietor to reimburse the expenses of the bonæ fidei possessor.

"This obligation arises only from that rule of equity, which forbids one person from enriching himself at the expense of another, without the fault of the latter. According to this rule, the owner ought not to profit, at the cost of the possessor, of the expenses which the latter has incurred; but he thus profits by it only so far as his property is augmented in value by these expenses; he ought not, therefore, to repay more than to that amount, even though the possessor has paid more.

"On the other hand, even if the value of the property is augmented to a greater amount than the expenditure laid out upon it, the owner is not obliged to repay more than the expenditures; because, although he has profited to a greater amount, he has only profited, at the expense of the possessor, to the amount of the sums actually laid out by him.

"The second exception to the principle, that a bona fidei possessor is entitled to be reimbursed his expenditures of utility, at least to the extent of the increased value of the property, is, that the rule is not so inflexible but that the judge may sometimes depart from it, according to circumstances. This is what Celsus teaches: In fundo alieno quem imprudens ædificasti aut conseruisti, deinde evincitur, bonus judex variè in personis causisque constituet: finge et dominum eadem facturum fuisse ;1 reddat impensam et fundum recipiat, usque2 eò duntaxat quò pretiosior factus est; et si plus pretio fundi accessit, solum quod impensum est. Finge pauperem qui si id reddere cogatur, laribus, sepulchris avitis carendum habeat: sufficit tibi permitti tollere ex his rebus quæ poscis ; dum ita ne deterior sit fundus quam si initio non fuerit ædificatum. Lib. 38. D. de rei vind.

"In the case put by Celsus, if there be this equitable consideration in favour of the occupant, that the owner ought not to profit, at his expense,

(1) Id est, maximè hoc casu debet reddere impensam, sed etsi facturus non fuisset regulariter debet reddere.

by the augmentation in value which the land has received from the expenditures laid out on it; on the other hand, there is another equitable consideration, still more strong, in favour of the owner, to which the other must yield, which is, that equity still less permits the owner to be deprived of his inheritance, for which he may be supposed to have a just affection, because he is unable to reimburse expenditures which he did not wish to have laid out upon the property which he has no desire to sell, and which would answer all his purposes in its original condition.

"Where the expenditures of utility, laid out by the bona fidei posses sor, are so considerable that the owner is unable to repay them, before taking possession of his land, and these expenditures have, at the same time, produced a considerable augmentation in its rent, it seems to me that the interests of the respective parties may be conciliated by allow ing the owner to take possession, upon condition that he should charge the land with the repayment of the amount of these expenditures by instalments. By these means, the just rights of both parties will be preserved; the owner is not deprived of his land, for want of the means of payment, and at the same time he does not profit, at the expense of the occupant, by its increased value."

Our author then proceeds (No. 348.) to state, that there are expenditures which may augment the value of the thing, supposing the owner to wish to sell it, without increasing the rent or profit derived from it, suppesing him to wish to retain it for his own use; in which case, the owner is not obliged to reimburse the bonæ fidei possessor, unless the owner be himself a dealer in such articles, and has, therefore, derived a pecuniary benefit from the increased value of the thing. And he quotes, as an example of the application of this rule, a case put in the Digest, of a slave in the hands of a bona fidei possessor, who has instructed him in painting, or some other elegant art, and the slave being reclaimed by his master, the latter is not responsible to the possessor for his increased value, unless the master be himself a dealer in slaves.

He then states (No. 349.) a third exception to the rule, which obliges the owner to reimburse the bonæ fidei possessor the expenses of utility laid out on the property, which is, that the rents and profits received by the occupant are to be first deducted.

"350. As to a malæ fidei possessor, the Roman law seems to have denied him the reimbursement of the expenses not absolutely necessary for the preservation of the property, although they may have augmented its value, and only to have allowed him the privilege of carrying off such articles as could be severed without injury to the property, and leaving it in its original state. Malæ fidei possessores, says the Emperor Gor

dian, ejus quod in alienam rem impendunt, non eorum negotiam gerentes quorum est, nullam habent repetitionem, nisi necessarios sumptus fecerint; sin autem utiles, licentia eis permittitur, sine læsione prioris statús rei, eos auferre. Lib. 5. Cod. h. t.

"The same also says elsewhere, Vineas in alieno agro institutas solo cedere, et si à malæ fidei possessore id factum sit, sumptus eo nomine erogatos per retentionem servari non posse incognitum non est. Lib. 1. tit. de rei vind. in fragm. Cod. Gregor.

"Lastly, Justinian, in the Institutes, de rer. div. § 30. after having stated, that he who has built upon the land of another is entitled to a reimbursement of his expenditures by the owner, adds, utique si bonæ fidei possessor sit; nam si scienti solum alienum esse, potest objici culpa, quod ædificaverit temerè in eo solo quod intelligebat alienum esse.”

Pothier then states, that notwithstanding these positive texts, Cujas (Obs. x. cap. 1.) supposes, that the malæ fidei possessor is to be put on the same footing, in this respect, with the bonæ fidei possessor, and is equally entitled to be reimbursed his expenditures, by which the land has been increased in value. Our author, after having refuted this notion, proceeds to observe, that in practice it is left to the discretion of the judge to decide, whether the owner ought to indemnify a malæ fidei possessor for the expenses of utility, to the amount of the increased value of 'the land, according to the nature and extent of the mala fides of the possessor, whether it is characterized by circumstances more or less criminal.

See, also, Huber. Prælect. lib. 5. tit. 3. de .Hered. Petit. § 12—19: Pothier, Pandect. Just. in Nov. Ord. Digest. Tom. 1. p. 186–191. Ib. p. 201-204. Argou, Instit. au Droit Francais, Tom. 2. liv. 4. ch. 17. Domat, Loix Civiles, liv. 3. tit. 5. sec. 3.

The subject under consideration has been treated somewhat at large by Lord Kaimes, in his Principles of Equity. The following citations will show that the author's notions of abstract justice, and his legal principles deduced from them, are in general accordance with the law of England, as well as with the doctrines of the civilians.

In his third book, (the first chapter of which is entitled, "What Equity rules with respect to Rents levied upon an erroneous title of Property,") he says: "With respect to land possessed upon an erroneous title of property, it is a rule established by the Roman law, and among modern nations, that the true proprietor, asserting his title to the land, has not a claim for the rents levied by the bonæ fidei possessor, and consumed. But though this subject is handled at large, both by the Roman lawyers, and by their commentators, we are left in the dark as to the reason of the rule, and of the principle upon which it is founded." *

"If the common law afford to the proprietor a claim for the value of his rents consumed, it must be equity correcting the rigour of the common law, that protects the possessor from this claim: but if the proprie tor have not a claim at common law, the possessor has no occasion for equity. The matter, then, is resolvable into the following question : whether there be or be not a claim at common law? And to this question, which is subtle, we must lend attention." * * * p. 270, 271. 2d ed. Lord Kaimes then proceeds to an investigation of this point, and, at the close of the inquiry, observes: "And thus it comes out clear, that there is no action at common law against the bonæ fidei possessor, for the value of the fruits he consumes; such an action must resolve itself into a claim of damages, to which the, innocent cannot be subjected." p. 273. "But suppose the bonæ fidei possessor to be locupletior by the rents he has levied :" ** at common law "there is no remedy, for the reason before given, that there is nothing upon which to found an action of reparation of damages in this case, more than where the rents are consumed upon living. But that equity affords an action, is clear; for the maxim, 'quod nemo debet locupletari aliená jacturâ,' is applicable to this case in the strictest sense.' p. 274.

By common law, Lord Kaimes evidently must mean the unwritten law of Scotland; since the common law of England has doubtless always afforded some remedy for the recovery of rents and profits, both where the fruits have been consumed, and where the tenant is locupletior. It would indeed strike one, that the famous maxim of the Roman law, of which Lord Kaimes has made so judicious a use, viz. "that no one ought to profit by another's loss," is applicable to the case of fruits consumed, not less than to the supposition, that the tenant is locupletior. The ́fruits consumed are certainly gain to the tenant, and loss to the proprie tor, quite as much as fruits hoarded up are. But in ordinary cases, it is to be supposed, that the tenant is a gainer and locupletior, (in Lord Kaimes' sense of the word,) and hence the distinction may not be very important; since he allows that equity will grant relief even against a bona fidei possessor, in case he be locupletior.

In another place, (Book 1. part 1. art. 1.) Lord Kaimes considers the case of a bonæ fidei possessor, and the melioration of real property in his possession.

"The title of land-property being intricate, and often uncertain, instances are frequent, where a man, in possession of land the property of another, is led, by unavoidable error, to consider it as belonging to himself; his money is bestowed without hesitation in repairing and meliorating the subject.” (p. 99.) "Every one, in that case, must be sensible of