*423February, 18th, 1817,

pronounced the Court’s opinion.

The Court is of opinion that the Decree is erroneous in limiting the Commissioner to the actual profits, received from the laud in controversy, and in not allowing to the Appellant credit for the amount of waste and dilapidations committed on the same, after the death of Mrs. Elizabeth Cary, through the permission or negligence of the Appellee; it being the opinion of the Court, that, instead of the actual profits as aforesaid, the Appellee should be charged with such as he might have received but for his wilful default, to be settled by a Commissioner; and also that the amount of the waste and dilapida tions aforesaid, if any, should be ascertained by an Issue.

The Decree is therefore reversed, with costs, so far as it conflicts with the above principles; and the residue thereof is affirmed; and the cause is remanded in order to be finally proceeded in.