The opinion of the Court was drawn up by
— This action, as to the charge for rent, cannot be sustained. A mortgagee in possession cannot be charged for rent by the mortgagor, so long as the premises mortgaged remain unredeemed ; unless there be a special agreement between the parties to the contrary. Tn this case the mortgagee had agreed to pay, and had paid accordingly, rent for a certain time. The attempt here made is to raise an implied assumpsit to pay for rent subsequently; but no such implication is, under such circumstances, recognized or infer-able at law. The mortgagee is the owner in fee, as between himself and the mortgagor; and surely it would be an anomaly to raise a promise by implication, on the part of the owner in fee, to pay rent to one, who at law is regarded, when in possession, as but a tenant at sufferance to the owner in fee.
As to the other item, of ton dollars, it appears to have been paid expressly towards a note, which the defendant held against the plaintiff; and which has been sued by the defendant, and judgment, thereon recovered, after an appearance by the plaintiff therein, by his attorney, and after numerous continuances of the action. There must have been ample opportunity to have had the ten dollars allowed in set-off and payment; and the plaintiff must be regarded, through wilfulness or gross negligence, as having omitted to avail himself of it in defence pro tanto. It is the policy of the law to afford its aid only to the vigilant;, and especially not to those w’ho are grossly negligent.
Plaintiff nonsuit,