Note 8 — Chapter II

Note 8. Page 54.

It might be inferred, from a somewhat loose statement in an English law treatise, that in a case like that of Mr. Aubrey—viz. of possession of property in entire ignorance that it belonged to another—a Court of Equity would protect against the rightful owner's claim for the mesne profits. Such, however, is by no means the case. Mr. Titmouse had recovered at law—by the superior strength of his title, and without requiring any assistance whatever from a Court of Equity; the mesne profits, therefore, were absolutely his—and any interference, by a Court of Equity, to deprive him of them, would have been an act of direct spoliation. Such a notion, therefore, is utterly destitute of foundation. If Mr. Titmouse had been compelled to seek the assistance of a Court of Equity in order to prosecute his claim, and had clearly been guilty of negligence or fraud; it is possible that some terms might have been imposed upon him, with reference to the mesne profits to be wrung from his comparatively-speaking innocent opponent—but even then, it is conceived that Equity would be very slow and jealous in exercising such a stretch of power. The Roman law took a different view of the subject, regarding him—qui justas causas habuisset quare bona ad se pertinere existimasset, (Dig. Lib. v. Tit. iii. 1, 20, &c.)—with great leniency, and exempting him from payment of mesne profits accrued previous to the action. According to the law of Scotland, a bonâ fide possessor evicted (i. e. turned out) by a person having a better right, is entitled to retain the fruits or profits (called "violent profits") which he may have reaped or received during his bonâ fide possession. It would seem, however, that this doctrine is based not solely upon the bonâ fide ignorance of the ousted party, but upon the concurring negligence and delay of his victorious opponent.