The opinion of the Court was delivered by Gibson, C. J. Trespass for mesne profits is a legal action, susceptible, however, of equitable defence borrowed, it is probable, from the practice in chancery on bills to account; and it is certain that a desseisor of his own tenant, may recoup as much as would have accrued to him had not the rent been suspended by his entry. Nothing is more distinctly visible than the existence of his equity, or better established by the authorities. The question is, then, whether an excess of profits over the rent in a given year, may be balanced by a deficiency in another year.

Why may it not? A chancellor would not settle a separate account for each; and even if he would, there is no reason or justice to forbid the balances of profit and loss to be set against each other. But may not the plaintiff, for purposes of rebuttal only, be allowed to open the whole account, so as to bring into view the profits of years excluded by the statute of limitations from direct recovery? The defendant can undoubtedly have no equity if he has received, by anticipation, the rents for the whole term.

By urging his claim to equitable defalcation, he has assumed the attitude of a plaintiff asking for equity; and hé must, therefore, manage his legal defence so as not to produce inequity.

He may use his plea of the statute, to the extent of its legal effect on his direct responsibility; but not to enlarge the ground of his relief beyond the limits of the hardship of which he complains. ' He may, at his election, abandon the one or the other, or use them both separately; but he may not increase the effect of the one by the operation of the other; for relief is extendible to him, not of right, but of grace, and only on terms of submission to the dictates of justice, and if he insist on strict law, he shall have strict law.

If the plaintiff, then, can show that the deficiency of profits in particular years included in the period of recovery, has been compensated, in whole or in part, by an excess in years excluded from it by the statute of limitations, he will have so far repelled the 'defendant’s claim to relief. But the defendant may not swell his claim by resorting to an inversion of the principle; for that would, in effect, give him rents for a period during which he has elected to be irresponsible for profits, and the rejected evidence seems, therefore, to have been properly excluded.

Judgment reversed, and a venire de noiio awarded,