' 48 FEDERAL REPORTER.
tion to recover anything for such mere use or occupation by the defend-
T ant; that is to say, for the time after August, 1885, when, the action at
law having been decided, the defendant acknowledged the plaintiii°’s title
and invited her to share in the possession and management of the prop-
erty. But while such use and occupation may not be made the direct
ground of recovery, it does not follow that it may not be considered in
connection with, and madean equitable set—off against, the defendants
· claim forrepairs, which, at common law, in the absence of agreement,
are likewise not the subject of an action between co-tenants. The same
principle which admits one of these claims into the computation opens
the door to the other as a set—otf against the first. The case of Hyatt v.
V Cochran, 85 Ind. 231, affords aclose analogy. That was an action for
rents and profits of real estate under a statute which permitted a recov-
ery for six years only The defendant claimed an allowance for repairs,
i and the plaintiff was permitted to bring forward in set-offa demand for
·T rents accrued more than six years before the commencement of the ac-
tion. T‘ i T ‘ T
» Theattitude and conduct of the defendant in the casehave shown
him throughout a determined and persistent litigant, and the result has
T shown him to have been·in the wrong; but in the judgment of the court,
if the subject of bona jides be within the scope of the· present inquiry,
there is not such proof of bad faith on the part of the defendant as to ex-
clude his claims from all equitable cognizance. .Upon a careful consid-
eration of the case in all its aspects, as presented by counsel, the court
' is 'not able todiscover a. basis of adjustment different from that adopted
bythe master,.which it could regard as more consonant with equity and
good conscience; and the amount reported, reduced by $212.43, that is
to say, $3,545.55, to be paid by defendant to complainant, is connrmed,
and all exceptions to the report inconsistent with this conclusion are over-
ruled. Decree and judgment accordingly. · *
-· » Iuvmsrrmmur Co. or PHILADELPHIA v. Onro &, N. W. R. C0. ct al.
T i (Circuit Oourt, S. D. Ohio, W D. August 1'i’, 1888.) V I
__B.srr.noAn COMPANIES—INSOLVENCY AND RECEIVERSTAUTHORITY ·ro Issuz Cmn-
_ ··rn·—rcA*rns. _ _ T T ,
‘ . » The petition of a receiver of an insolvent railroad company for authority
, ‘ _ . to borrow $347,577.18,.and issue his certificates therefor, specified that $111,-
. _904 of the amount was to beused in completing, a portion of the road and
widening its gauge, $35,000 for purchasing and laying track over another por-
tion already graded and bridged at an expenseof $49,000; $47.248.18.to pay
, claims for material furnished, etc., which were not a. lien on the road;.$20,·
’ ·T 000 to reimburse bondholders for advances to meet arrcarages of wagesand
avert a strike; $100,000 to purchase leased rolling stock, for which the com-
. . ppany paid anannual rental of $28,800, the lessors also canceling a claim for
» . $7,000 unpaid rent,. if the purchase was made; $4,000 to relay a line of track
T on a connecting road, and thus cancel a debt of $8,000 due that road, and
· secure enough additional business topay the cost in three months; and $29,-