|
|
|
|
|
|
|
|
|
|
|
|
NEALE v., HAGTHROP. 601
profits of the property held by him from the time it was placed in
the hands of the receiver, until the 17th of February, 1831, up to
which day the auditor's statements have been made.
It appears to have been the practice in many cases in this court,
where the object of the suit was to recover certain specified pro-
perty, together with its rents and profits during the time of its
unjust detention, to order an account of the rents and profits to be
taken before the property itself was ordered to be delivered up.
The inevitable consequence of such a course of proceeding is,
that after the account has been so taken, and the property has been
delivered, there will remain a claim for an unascertained amount
of rents and profits which have accrued between the time up to
which the account had been taken, and the delivery of possession,
to be adjusted and recovered by a subsequent proceeding, (u)
Observing the impropriety and inconvenience of this practice, I
shall follow it no further. In cases of this kind a final decree
should be passed directing the specific property to be delivered
up; followed by a clause directing an account of the rents and
profits to be taken up to the time of such delivery. By such a
decree the controversy would be so far terminated; and the pro-
perty itself being thus transferred to its true owner, there could be
no occasion to call for the appointment of a receiver, as in this
instance, to preserve it from any loss or injury to which it might
be exposed while remaining in the hands of the defendant. And
an exact period being thus fixed up to which the account may be
brought by such a final determination in favour of the plaintiff's
title, his rights, consequent upon that determination may be also
finally decided, and the whole case closed, without going again to
the auditor for a further account, (w]
It will be necessary, however, again to send this case to the
auditor for the purpose of stating a final account upon the same
principles, and in continuation of that last stated by him, shewing
the amount of rents and profits with which each defendant is
chargeable from that time to the time when the property shall
have been delivered to the plaintiff. And for this purpose, the
receiver in whose hands the property held by the defendant Ed-
ward Hagthrop has been placed, must also be ordered to make a
(u) Crapster v. Griffith, 6 H. & J. 144; S. C. 2 Bland, 5. —(w) Kipp v. Hanna,
2 Bland,
76. v. 3
|
|
|
|
|
|
|
|
|
|
|
|
 |
