onums v. cirr or Naw oanmsus. 315
dismissing the appeal as premature, the circuit court ordered "that the
master take an account of rents and profits received, or which could
and ought to have been received."r ` See this principle, expounded in
Duranton, vol. 16, p. 307,.No. 288; Demolombe, vol. 9, p. 96; and.
MacEldey’s Compendium, No. 154. Says Papinian, lib. 62, §§ 1, 6,-
ff. de rei vindi: “Generally, when the amount of fruits is being in-· E
quired into, we must not consider whether or not the possessor in bad
faith has reaped fruits, but whether the complainant (owner) might
have reaped fruits if he had been allowed to remain in possession.
And this decision is also approved by Julian." (Generaliter autem,
quum de fructibus sestimandis quaeritur, constat adverti debere, non
aumalaz fidei possessor fruitus sit, sed an petitor frui potuerit, si ei
possidere licuisset—quan sententian Juliaun quoque probat.) See,
also, same author, lib. 64, ff. de rei viud. And Paulus, lib. 33, eodem
‘ titulo, says: "Not only the fruits that have been gathered, but also
those that might have been gathered, must be accounted for."
(Fructus non modo percepti, sed ed qui percepi honeste potuerunt,
aastimandi sunt.)
I 1 Du Caurroy, 285, 289, 298,Instit. de Justinien, (Ed. 1826,) says,
at page 298, "that the possessor in bad faith must account for all
the fruits received, and even for the fruits which, though not re-
ceived by him, could have been obtained by the owner. " (Papin, fr.
62, § 1, Paul, fr. 33, cod. v. sec. de off. Ind.; 1 Moreau de Montalin,
p. 596, (Ed. 1824,) and Analyse des Pandretes de Pothier.)
The common law, as stated in Bracton’s Laws and Customs of
England, gives the same rule: "The jurors will diligently inquire.
r - what profits the disseizor had received in fruits, rents, and other
commodities. They were also to estimate the advantages the dis-
seizen might have derived from the estate if he had not been dis-
seized." Stearns, Real Actions, 393. g
The amounts already in judgments would establish the limit of re-
covery if there was nothing but the naked liability flowing from the
A law of warranty. But there is here another ground of liability on the
part of the defendant which is to be considered in connection with,
but which exists independent of, the warranty. The warranty gave
the defendant her moneyed interest in defeating and delaying the
complainant in the enforcement of her rights. But it is the unjust
hindrance which was the cause and is the measure of the damage;
for it cannot be that a wrong-doer can so frame the execution of his
wrong as to limit his liability short of complete indemnity. The evi-
4 dence shows that for 47 years the city of New Orleans has in bad
faith kept the complainant out of the possession of her property; that
she has done this by using her vast resources and even her power of
annually taxing complainant’s property for keeping in prosecution a
gigantic system of litigation, having for its object to prevent the com#
plainant from possessing and enjoying property which the defendant