#### Christian L. Benzein et *al. v.*Jesse Robinett *et*al.

interest upon rents and profits is not usually allowed until an account be demanded. But where the possession is *mala fide,*it is allowed from the receipt.

After the decree made in this cause, and in that oí *Benaein*v. *Lenoir (ante vol.*1, 255, 444) whereby payment Avas decreed of the mortgage made by *Montgor*
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      *mery,*to the *Unitas Fratrum,*and the right of the' plain-j-^r, *,§f¡0¡tes*anj] *Wellborn*to a re-conveyance of the residue of the mortgaged premises was established, an account was directed of the rents and profits received by the defendants, and also of the waste committed by them upon the land mentioned in the pleadings.

The clerk at this term reported, that the defendants, on account of rent and waste, owed to the plaintiff's *Stokes*and *Wellborn,*$1208 principal, and $863 50 interest. In coming to this result, the cleric charged the defendants interest upon the value of the land, from the end of every year in which the profits were received by them, up to the time of filing his report. The clerk also reported the fact, that the defendants had filed with him sundry notes of the plaintiff *Stokes*which they claimed to have set off against any balance that might be due him. Copies of these notes were certified with the report, and from them it appeared, that none of them were payable to, or endorsed to the defendants ; but the legal title to most of them was in a copartnership, of which one of the defendants only was a member.

The plaintiffs excepted to the report, because the clerk had allowed a smaller sum *per annum,*for rent, profits and waste, than was justified by the testimony before him.

A statement of the facts proved before the clerk, and on which this exception was founded, is unnecessary.

The defendants excepted, 1st, To the mode adopted by the clerk in estimating the interest upon the rents and profits, insisting, that no interest should have been charged before the filing of the bill.

2d. Because the clerk had not allowed them credit for the above mentioned notes of the plaintiff *Stokes.*

*Seawell*and *Gaston,*for the plaintiffs.

*Badger,*for the defendants.

itusriN, Judge

The exceptions of the plaintiffs are both overruled ; because the allowances both for rent and damages are more than ample. The clerk gives full rent, as if the landlord had kept up repairs ; and *69at the same time, charges the defend ants with them. Had the other side excepted for this, the amount might have been reduced, but there is no reason to increase it.

Promissory notes executed by the plaintiff, and .payable to persons not parties, cannot be set off against the amount reported in his fa-vour.

If payable to ■a defendant, and the plaintiff is insolvent, they may be set .off upon petition.

But ifnot payable to a party, it can only bo done by bill-

Though rents do not usually bear interest, until the filing of the bill, or an account be demanded, yet where the possession was, as bore, *mala Jide*from the beginning, the profits became a debt from their perception ; and of course bear interest. The first exception of the defendants is therefore overruled.

The bonds mentioned in the second exception can, on no principle, form set-offs. -They do not appear to belong to the defendants, except from the possession. They are not mutual debts at law or in equity, except by bringing in other facts and persons not before the Court, and not stated in the answer. If indeed the obli-gor be insolvent, that would be a ground in this court, why they should be deemed a satisfaction of so much of the sum, as may be decreed to that party. And to enable the defendants to avail themselves of that, a petition might be filed in the cause, had the bonds been assigned to the defendants. But as other persons, namely the obligees in the bonds, would be necessary parties, a petition will not *serve;*and the defendants must be put to their bill, as in *Iredell*v. *Langston, (ante*1 *vol.*392) This exception must also be overruled.

Per Curiam. — Decree accorbiNGXT.