3*] APPENDIX. [*NOTE I.] ON THE CASE OF GREEN ET AL. v. BIDDLE, ante, p. 1-108. The editor has supposed that the learned reader would not be dissatisfied to see collected together the authorities from the civilians, and also from the common law, and the decisions of the courts of equity, bearing upon the principal question in the above case. The leading principals of the civil law on the subject, are stated by Justinian as follows: 44 De edificatione ex sua materia in solo alieno. Lib. II., tit. 1, sec. xxx. Ex diverso, si quis in alieno solo ex sua materia domum ædificaverit, illius fit domus cujus solum est. Sed hoc casu materiæ dominus proprietatem ejus amittit, quia voluntate ejus intelligitur esse alienata; utique si non ignorabat, se in alieno solo ædificare: et ideo, licet diruta sit domus, materiam tamen vindicare non potest. Certe illud constat, si, in possessione constituto ædificatore, soli dominus petat, domum suam esse, nec solvat pretium materiæ et mercedes fabrorum, posse eum per exceptionem dolli mali repelli; utique si bonæ fidei possessor fuerit, qui ædificavit. Nam scienti, solum alienum esse, potest objici culpa, quod ædificaverit temere in eo solo, quod intelligebat alienum esse." De fructibus bona fide perceptis. Sec. xxxv. Si quis a non domino, quem dominum esse crediderit, bona fide fundum emerit, vel ex donatione, aliave qualibet justa causa, æque bona fide acceperit, naturali ratione placuit, fructus, quos percepit, ejus esse pro cultura et cura: et ideo, si postea dominus supervenerit, et fundum vindicet, de fructibus ab eo 4*] consumptis agere non potest: ei vero *qui alienum fundum sciens possederit, non idem concessum est; itaque cum fundo etiam fructus, licet consumpti sint, cogitur restituere." ratio neque consumptorum, neque non perceptorum. Post inchoatam autem petitionem etiam illorum fructuum ratio habetur, qui culpa possessoris percepti non sunt, vel percepti consumpti sunt.' So also, the Napoleon Code, which is in a great measure copied from the civil law, declares (liv. 2, tit. 2, art. 546) that the property of a thing, whether movable or immovable, gives a right to all which it produces, and to everything which is inseparably united with it, whether naturally or artificially. This right is termed the right of accession. "547. The natural or artificial fruits of the earth, the civil fruits, and the increase of animals, belong to the owner by right of accession. 548. The fruits thus produced belong to the owner of the thing producing them, provided he re-imburses the expense of the labor bestowed upon it by third persons. 549. A mere occupant does not make these fruits his own, unless he is a bona fidei possessor; in the contrary case, he is bound to restore the products with the thing, to the owner who claims it. 550. He is considered as a bona fidei possessor, when he possesses, as proprietor, in virtue of a title to the property, of the defects of which he is ignorant. He ceases to be such the moment these defects are known to him. "551. Every object which unites and incorporates itself with the thing, belongs to the owner, according to the rules hereinafter established." "555. Where plantations, buildings, and other works have been made or erected by a third person, with materials belonging to him, the owner of the land has a right either to retain them, or to compel such third person to remove them. "If the owner insists upon the suppression of the plantations and *buildings, it must be [*5 done at the expense of the person who has made or erected them, without any indemnity to him; he may even be adjudged in damages, if there be ground for it, for the injury done to the owner of the land. "Lib. IV., tit. 17, sec. ii. Et si in rem actum sit coram judice, sive contra petitorem judicaverit, absolvere debet possessorem; sive contra possessorem, jubere ei debet, ut rem ipsam restituat cum fructibus. Sed, si possessor neget, in præsenti se restituere posse, et sine frustratione videbitur tempus, restituendi causa petere, indulgendum est ei; ut tamen de litis æstimatione caveat cum fidejussore, si intra tempus quod ei datum est, non restituerit. Et si "If the owner chooses to preserve the planhæreditas petita sit, eadem circa fructus inter- tations and buildings as his own, he must reveniunt, quæ diximus intervenire de singularum imburse the value of the materials and labor rerum petitione. Illorum autem fructuum, bestowed on them, without regard to the more quos culpa sua possessor non perceperit, sive or less augmentation in value of the land. But illorum quos perceperit, in utraque actione if the plantations, buildings, and other works, eadem ratio pene habetur, si prædo fuerit. Si have been made or erected by a party who has vero bonæ fidei possessor fuerit, non habetur | been evicted from the possession, but who was Wheat. 8. U. S., Book 5. 46 721 not adjudged to restore the fruits, by reason of his being a bona fidei possessor, the owner cannot insist upon the suppression of the said works, plantations, and buildings, but shall have the election either to re-imburse the value of the materials and labor, or to pay a sum equal to the augmented value of the land." So, also, in the law of Scotland, which is mainly founded upon the Roman law-"A bona fidei possessor is he who, though he is not really proprietor of the subject, yet believes himself proprietor, on probable grounds. A mala fidei possessor knows, or is presumed to know, that what he possessed is the property of another. A possessor bona fide, acquired right, by the Roman law, to the fruits of the subject possessed, that had been reaped and consumed by himself, while he believed the subject his own. (Sec. 35, Inst. de rer. div.) By our customs, perception alone, without consumption, secures the possessor. Nay, if he has sown the ground while his bona fides continued, he is entitled to reap the crop, propter curam et culturam. But this doctrine does not, according to Bankt. I., 214. sec. 19, reach to civil fruits, e. g., the interest of money, which the bona fidei receiver must restore, together with the principal, to the owner. jure seminis, sed jure soli percipitur. (L. 25, D. de usur.) He is held accountable, not only for the fruits which are the products of the thing itself, and which are termed natural fruits; he ought, also, to account for the civil fruits, as we have seen in the preceding paragraph. "336. A mala fidei possessor is not only held accountable for the fruits which he has received, but even for those which he has not received. but which the owner might have received, if the land had been restored to him: Generaliter, says Papinian, quum de fructibus æstimandis quæritur, constat adverti debere, non an mala fidei possessor fruitus sit, sed an petitor frui potuerit, si ei possidere licuerit. (L. 62, s. 1, D. de rei vind.) 64 The reason is, that a male fidei possessor, contracts, by the knowledge which he has that the property does not belong to him, the implied obligation to restore it to the owner; on failure of which he is responsible for the damages and interest resulting from this obligation, in which are included the fruits which the owner has failed to receive. as the deceased would be held accountable, if he were still living; because in his character of heir he has succeeded to all his obligations, and his possession *is merely a continuation of [*7 that of the ancestor, and is infected with all its vices, as we have observed in the preceding article. "The heir, or other representative of the male fidei possessor; even if he supposes in good faith that the property belongs to him, is held Bona fides necessarily ceases by the con- accountable for all the fruits received subsescientia rei aliena in the possessor, whether such quent to the unlawful possession of the deceasconsciousness should proceed from legal inter-ed to whom he succeeds, in the same manner pellation, or private knowledge; for the essence of bona fides consists in the possessor's opinion that the subject is his own. (Lib. 20, sec. 11, de her. pet., 20 Nov., 1662, Children of Woolmet.) The decision, 14 March, 1626, brought by Viscount Stair, in support of the contrary opinion, proves no more than that an assignation, with out intimation, is an incomplete deed. Mala fides is sometimes induced by the true owner's bringing his action against the possessor, by which the lameness of his title may appear to him; sometimes not till litiscontestation, which was the general rule of the Roman law; and, in cases uncommonly favorable, it is not induced until sentence be pronounced against the possessor." (Erskine's Princ. of the law of Scotland, B. 2, tit. 1, s. 13, 14.) 6*] *Pothier has discussed this subject with his usual precision; and the following translation of a few passages from his treatise "Du Droit de Propriété" may not be unacceptable to the learned reader. "335. A malæ fidei possessor is bound to account for all the fruits of the thing recovered which he has received, not only those which he received after the judicial demand, but those which have come to his hands subsequent to his unlawful possession: Certum est male fidei possessorem omnes fructus solere præstare cum ipsa re. (L. 22, Cod. de rei vind.) He is held accountable, even for those proceeding from the crops which he has sown, and the labor he has bestowed on the land; but from these must be deducted the value of the seed and labor expended by him. "The reason is, that all the fruits which the land produces are accessaries to the land, which, as soon as they are gathered, jure accessionis, become the property of the owner of the land, as we have seen supra, n. 151, instead of belonging to him whose labor has produced them; from whence this maxim: Omnis fructus non 337. According to the principles of the Roman law, a bona fidei possessor is not liable to restore the fruits received by him before the litiscontestation, except those which at that period specifically remain; but he is responsible for all the fruits subsequently received, in the same manner as a male fidei possessor; Certum est malæ fidei possessores omnes fructus præstare; bona fidei vero, extantes post litiscontestationem, universos. (L. 22. Cod. de rei vind.") 340. That which we have laid down, as to a bona fidei possessor not being responsible for the fruits received and consumed by him before the suit, only applies in those cases where he has received and consumed them whilst his bona fides continued; but where he has had notice, although long before the judicial demand, that the property of which he is in possession belongs to another, he can no longer receive for his own profit the fruits proceeding from it, nor discharge himself from the obliga-tion of restoring those which specifically remain, by afterwards consuming them." 341. The principles of our French law, in respect to the restitution of the fruits, in an action in rem, in the case of a malæ fides possessor, are the same with those of the Roman law, as they have already been explained. the occupant at that period, where they have been previously received. 66 'But by the notice which is given to a bona fider possessor, in which the demandant exhibits to him a copy of his title deeds, and which has consequently, in this respect, in our law, the same effect as the litiscontestation in the Roman law, he ceases to be any longer a bona fidei possessor, being considered as informed of the demandant's right by this notice; he cannot, therefore, be any longer considered as entitled to receive the fruits, and must be adjudged to restore all those which he has received subsequent to the notice.' "343. Where, in the action rei vindicationis, the demandant has established his right, the possessor is adjudged to restore him the thing recovered; but in certain cases, where the possessor has disbursed a certain sum, or contracted an obligation for the removing an incumbrance, for the preservation or amelioration of the thing which he is adjudged to restore, the judgment is rendered upon con8*] dition that the demandant *shall re-imburse 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 re-imburses 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 bona fidei and a mala 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 bona fidei possessor, the owner cannot compel him to restore the property, without first re-imbursing the expenses, although they were not indispensably necessary to the preservation of the property, and have merely augmented its value. 66 'Justinian gives an example of this principle in the case of a bona 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 re-imburse 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 materia et mercedes fabrorum, posse eum exceptionem doli mali repelli, utique si bona fidei pos sessor fuerit qui ædificavit. (Instit. tit. de rer. div. s. 30.) "346. This principle, that a bona fidei posessor ought to be re-imbursed 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 re-imbursed precisely and absolutely [*9 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, s. 2, D. d. pign.) This results from the principle on which is founded the obligation of the proprietor to reimburse the expenses of the bona 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. a "The second exception to the principle, that bona fidei possessor is entitled to be re-imbursed 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 varie in personis causisque constituet: finge et dominum eadem facturum fuisse; reddat impensam et fundum recipiat, usque 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 favor of the occupant, that the owner ought not to profit, at his expense, *by the augmentation in value [*10 which the land has received from the expenditures laid out on it, on the other hand, there impensam, sed etsi facturus non fuisset regulariter 1.-Id est, maximè hoc casu debet reddere debet reddere. 2.- This refers to impensam reddat. is another equitable consideration, still more strong, in favor 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 re-imburse 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. 44 Where the expenditures of utility, laid out by the bona fidei possessor, 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 allowing the owner to take possession, upon condition that he should charge the land with the repayment of the amount of these expenditures by installments. 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.' "Lastly, Justinian, in the institutes (de rer. dir. s. 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. I.) supposes that the mala fidei possessor is to be put on the same footing, in this respect, with the bona fidei possessor, and is equally entitled to be re-imbursed 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 posessor 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., s. 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: 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, supposing him to wish to retain it for his own use; in which case, the owner is not obliged to re-imburse the bona 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 In his third book (the first chapter of which Digest, of a slave in the hands of a bona fidei is entitled, What equity rules with respect possessor, who has instructed him in painting, to Rents levied upon an erroneous title of Propor some other elegant art, and the slave being erty," he says: "With respect to land posreclaimed by his master, the latter is not re-sessed upon an erroneous title of property, it is sponsible to the possessor for his increased value, unless the master be himself a dealer in slayes. He then states (No. 349) a third exception to the rule, which obliges the owner to re-imburse the bona 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 mala fidei possessor, the Roman law seems to have denied him the re-imbursement 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. Mala fidei possessores, says 11*] the Emperor Gordian, *ejus quod in alienam rem impendunt, non eorum negotiam gerentex quorum est, nullam habent repetitionem, nisi necessarios sumptus fecerint; sin autem utiles, licentia eis permittitur, sine læsione prioris tús rei, eos auferre. (Lib. 5, Cod., h. t.) 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 bona 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 pro- [*12 prietor a claim for the value of his rents consumed, it must be equity correcting the rigor of the common law, that protects the possessor from this claim; but if the proprietor 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 insta-quiry, observes: "And thus it comes out clear that there is no action at common law against "The same also says elsewhere: Vineas in the bona fidei possessor for the value of the alieno agro institutas solo cedere, et si à mala fi- fruits he consumes; such an action must resolve dei possessore id factum sit, sumptus eo nomine itself into a claim of damages, to which the inerogatos per retentionem servari non posse incog-nocent cannot be subjected." *** (p. 273.) nitum non est. (Lib. 1, tit. de rei vind. in fragm. Cod. Gregor.) "But suppose the bona 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 alièná jactura,' 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 proprietor, 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 bone fidei possessor, in case he be locupletior. In another place (Book 1, part 1, art. 1), Lord Kaimes considers the case of a bona fidei possessor, and the melioration of real property in his possession. rum: Est enim personalis quia persequitur eum, qui fecit disseisinam propter factum quia ipse fecit; persequitur etiam eum ad pœnam propter injuriam; persequitur etiam rem quoad restitutionem et in hoc est rei persecutoria." "Acquiritur vero per assisam istam non solum ipsa res spoliata corporalis verum etiam omnes fructus medio tempore percepti cui competit querela. Item non solum ipsa res sed in ipsa re pax et quies. Item non solum pax et quies in proprio, sed libertas et perturbationis evacuatio, de quibus mentio facta est in principio." (Lib. IV. De assisa novæ disseysinæ, Cap. VI.) Nearly the same thing is to be found in Fleta; take the following citations: "Et quo casu, si talis intrusor teneat se in possessione ejici poterit impunè vel donator per assisam novæ disseisinæ seisinam suam recuperabit." (Fleta, Lib. III. Cap. 15.) Domino vero proprietatis competit remedium versus ejectorem per assisam novæ disseisinæ et perinde recuperabit tenementum dampnà vero minimè.' (Id. L. IV., C. 31.) And Brooke also, in his abridgement, is equally explicit. "Nota (says he) per ascum justices et sergeants, si disseysor fait feoffment, le disseysie reenter il recouvera son dammages per severals briefes de trespass tam vers les feoffces come vers le disseysor et in assyse derent le playntife recovera tout son dammages vers le tenaunt pour xx. ans coment *que il nad [*14 estre tenaunt mes per un moys. (33 Hen. VI., 46.)" (Bro. Abridg. part I, fol. 202, s. 13, tit. Damages.) The extent to which the principle is carried in this place, is warranted by the statute 6 Edw. I., commonly called the Statute of Gloucester, which enacts (among other things) "that the disseisee shall recover damages in a writ of entry upon novel disseisin, against him that is found tenant after the disscisin." (Vide Plowden, 204.) The statute of Marlbridge (52 Hen. III., c. 16), had before given damages in a writ of mort auncester against the chief lord. "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.) Everyone, 13*] in that case, must be sensible of *a hardship that requires a remedy; and it must be the wish of every disinterested person, that the bona fidei possessor be relieved from this hardship. That the common law affords no relief" that if a man disseise me and enfeoff persons will be evident at first sight." (p. 98.) But "a court of equity interposes, to oblige the owner to make up the loss, as far as he is locupletior." (p. 99.) The maxim of the law of England, on this subject, seems to have always been quod careat emptor. This is the general spirit of the common law doctrine as to the transfer both of personal chattels and of real property. Where there is an outstanding judgment or mortgage, concerning which the purchaser is ignorant, the maxim is applied, so far as the land itself, and the title to it, claimed by persons other than the vendor and vendee. If there be a remedy, then, for the bona fidei possessor, it is, as Lord Kaimes observes, only to be found in a resort to a court of equity; and there, as we shall presently see (in the case of Dormer v. Fortescue), the relief will depend upon the evidence of bona fides. The authorities in the common law of England are numerous and uniform, from the earliest times, in support of the doctrine laid down by the court in the case in the text, concerning rents and profits. Est autem ista recognitio (says Bracton) sive assisa triplex et pœna multiplex ut infra de restitutione damno It is also laid down in Brooke's Abridgment, unknown, and then retake an estate to himself and ten others, and only two of these ten take the profits, the disseisee shall have an assize against the disseisor, and not against the ten feoffees, for the profits; and it shall be no good plea for the disseisor in this case to say that he received nothing of the rents with the ten others." (See, also, folio 121, b. s. 22, Part II. tit. Pernor de profits et rents; and titles Assize. Disseisor and Disseisin. Trespass.) Lord Coke says, that "in actions where damages are to be recovered, and the land is the principal" (some hold the opinion), that " 'the demandant never counteth to damages, and yet shall recover them." Others doe hold the contrarie.' (Co. Litt., 356 a.) And in Mr. Butler's note upon this passage, he says that Sir Edward Coke, in his commentary upon the statute of Gloucester (2 Inst., 286), observes, that regularly, in personal and mixed actions, damages were to be recovered at common law; but that in real actions no damages were to be recovered at the common law, because the court could not give the demandant that which he demanded not; and the demandant in real actions demands no damages, either by writ or count. The assize was a mixed action, and, |