Spencer, J.

1. This was an application by the fourth defendant for mesne profits on the extent of land in the enjoyment of the plaintiff between the date of the decree in the first Court and the decision of the appeal. The matter was referred by the District Judge to a Commissioner to ascertain the amount of mesne profits due. The Commissioner directed the plaintiff to adduce her evidence first, on the ground that she had been in possession of the property and was thus in the best position to state how much profit she had obtained.

2. The plaintiffs pleader refused to open his case, upon which the petitioners witnesses were examined and the case was closed. Meanwhile, the counter-petitioner (plaintiff) applied to the District Court to direct the Commissioner to record her evidence. The District Judge in an order on the interlocutory application decided that the Commissioner was right and refused the counter-petitioners request.

3. The questions now before us are (1) whether the District Judge was right in giving the petitioner mesne profits upon 15 acres 42 cents of wet land and (2) whether he was right in not allowing the appellant an opportunity to adduce her evidence As reg