not so: fifteen or twenty-five acres are to be taken from the belt, to form a screen round the estate. It was known from what part of the wood they were to be taken; and if this gentleman knew that, and that what was likely to form a screen was more valuable than the rest, after his perambulation he would have said, You are going to make a screen, and that which you are going to take is of much more value than any other part, and you must pay me more for it.' He does not say a word of the kind, and it is clear that he considered the belt and the other part of equal value; probably he considered the belt of inferior value, for as the belt formed a screen to the others, the trees comprised in the belt might not be so large as the trees screened by the belt. But according to this contract, and the conduct of the parties upon it, if, when forming this belt, the Respondent's steward had dipped in further than was necessary for the belt, the other party would have had a right to object, and say You are not taking it for a belt, but because they are large, good trees; which is not consistent with the terms and spirit of the contract: you are only to take that which is necessary to form a belt.' And if that objection had not been entered into, and he had gone into a court of justice, and had said, Under the pretence of a belt, by making an angular line, you have embraced trees that cannot be necessary for the belt,'-if that had occurred, he would have made a good case, and the Court would have. done justice between the parties; but he makes no objection; he is present at the time when the belt is staked out, and the witnesses say they heard no objection made. But if any thing unfair had taken place upon the occasion, would not this 1830. PENTLAND v. WILLOUGHBY. 1830. PENTLAND บ. WILLOUGHBY. gentleman have sent a written notice, and said, You have gone beyond the extent of your right'? I say he has completely acquiesced in taking this belt as it was fairly set out; and if it was fairly set out as a belt or screen, it is to be taken as of the same value as the other; and if we were to send it down to an inquiry whether it was of equal value with the other, I rather think this gentleman would not then have so large an allowance as he is now entitled to, but it would be prolonging litigation: I am extremely sorry to see that a small question of this sort has been in dispute from the year 1819 or 1820 down to the year 1830: we will not indulge Lord Gwydir, if he was to ask it; and it may prejudice the other party, by sending it down again to make the inquiry whether the belt was of equal value with the rest of the plantation. Confining ourselves to that which is to be found within the four corners of the contract, it is evident that all the 208 acres were regarded by both the contracting parties as of equal value, and that it therefore applies to the only mode by which the apportionment can be made. When this gentleman takes his objection afterwards, he contends that he ought to be paid at the rate of 40l. an acre, and that he had bought the whole; whereas he had only bought the whole except such part as Lord Gwydir, under the instrument, had a right to reserve that part remained in Lord Gwydir, and did not vest in this person, to be sold back at any extravagant price he chose. He says, Having bought the whole at 127. an acre, I offer to sell you these eighteen acres at 40l. an acre.' He desires a valuation to be made, and a valuation is made under the order of the Court. In two or three years the trees could not have much improved, at least not to the extent of the difference between 127. and 401.; but the trees are valued, which he had bought at 127. an acre, at 3767., which is above 201. an acre; this gentleman is not content with that, but he is desirous of squeezing something more out of Lord Gwydir, with whom he had made a most advantageous bargain. I submit to your Lordships, that this appeal ought to be dismissed, with 1007. costs. Judgment affirmed, with 1007. costs. 1830. PENTLAND v. WILLOUGHBY. Where a lessee of lands is in possession under the judgment of a court of law in Scotland, which judgment, upon appeal to the House of Lords, was held to be erroneous, the possession is bona fide; and the lessee, by the law of Scotland, is not accountable to the owner for the profits of the lands during the possession. Dec. 9. THE Lord Chancellor. 1830. With respect to the first question, I never saw a case more clear from doubt than the construction of this instrument. By making 'heir' a word of purchase, for that is what is really done here, they give a sort of entire vested right in the person who answers to the description of heir; whereas, after all, she was only one of the coparceners; she did not answer that description: but even if she had, the House of Lords in reversing set up the first judgment in a very peculiar way. This is a question of violent profits; upon that subject the law of Scotland totally differs from the law of England, where a person has been in what is called bona fide perception of the profits, and has made expenditure for the benefit of the estate. The law of Scotland, in conformity with the civil Lord Brougham. law, with some modifications, and in conformity, to a degree, with the law in the greater part of Europe, holds that the bona fide perception and consumption of the fruits which are supposed to be consumed follows the rule of bona fide possession: "bona fide possessor facit fructos perceptos et consumptos suos ;" that is, we know, a rule contrary to the English law. They also hold with the giving relief to the extent of a portion, if not the whole, as far as it can be reasonably estimated, of that which he has bona fide expended for the improvement of the subject matter. Now that being the law, and the question being bona fides or not, it becomes a question of fact how far there is bona fides entitling the party? what shall be considered the first cesser of the bona fides? and where begins the mala fides, so as to render him responsible for the violent profit? Is there any case, or any authority without a case, in which it has been held that a party in possession under a judgment of the Court below (appealed from, it is true, but still in possession until reversed by a subsequent judgment), though it may be contrary to all the principles of law, is in malá fide: can any instance be shewn where there having been a possession during the subsisting judgment, which judgment was afterwards reversed on the clearest reasons of law in this house, the reversal of that judgment has been held to go, by relation, back during the period of possession to impeach the perception and consumption of profits, or where the possessor has been deprived of the benefit of his improvements (for it is the same thing while the judgment appealed from stands), so that it was to be considered mala fides in the possessor while 1830. CARNEGY v. SCOTT. |