548 NEALE v. HAGTHROP.—3 BLAND.

That Catherne Orbin, a daughter of Anthony Hook, on the first
of January, 1805, executed a deed under seal to Hagthrop and
wife as administratrix of John Hook, whereby she acknowledged
the receipt of £121 Os. Od. current money as the full amount of her
proportion of her father's estate, and ratified, so far as it respected
her part, the sales made by them. That the defendants Hagthrop
and wife as administratrix of John Hook, at several times sold
merchandise to a considerable amount to two other of the children
of Anthony Hook, for which they gave receipts, as for so much to
be deducted out of their respective distributive shares of their
father's estate. And that Mary Hook, the widow and administra-
trix de bonis non of Anthony Hook, died sometime in the year
1805, after which administration was granted, as stated in the bill,
to this plaintiff.

After the case had been set for hearing; the solicitors of the
parties by a writing, filed on the 4th of November, 1826, agreed,
that the bill be so amended as that the prayer for subpoena should
include the name of James Hook.

BLAND, C., 5th December, 1826.—This case standing ready tor
hearing, and the counsel on both sides having been fully heard,
the proceedings were read and considered.

It will be proper to recollect as we proceed with the exposition
of this case, that this is a bill professedly for relief against these
defendants, as the alleged unjust holders of certain specified assets
of the plaintiff's intestate; and that therefore, if the plaintiff is
entitled to relief of any kind, according to the nature of his case,
he is, as a consequence of such right, entitled to an account from
the defendants, of the rents and profits of the property so wrong-
fully held by them, and to a discovery from each as to all matters
in relation to such an account. The plaintiff's title to relief is
obviously and necessarily the first and preliminary question to be
decided; lor it would be idle to go into any account of rents and
profits, or to ask for or to consider any discovery so made, if the
plaintiff is not entitled to relief in some one form or other, accord-
ing *to the nature of his case; since no case can be sent to
562 the auditor with directions to state an account in any way,
unless it be first shewn, that the plaintiff is entitled to relief; nor
can an account or discovery be directed in any case but as ancil-
lary to a previously ascertained or admitted right to relief. So
that, if upon a demurrer, plea, or answer, belore or at the final
hearing it should be determined, that the plaintiff can have no
relief, he can have no account, nor any discovery; and although
the taking of the account may not be stayed pending an appeal
from the adjudication in favor of the plaintiff's title. Popham v.
Bampfield, 1 Vern. 83, 344; Welford v. Leddel, 2 Ves. 400; Fitz-
gerald v. Burk, 2 Atk, 397; Jeffreys v. Baldwin, Amb. 164; Fry v.