
    WILLIAM A. MELOY, EXECUTOR OF THE LAST WILL AND TESTAMENT OF ANNE J. WORCESTOR, DECEASED, vs. HORACE S. JOHNSTON.
    At Law. —
    No. 12194.
    I. In an action of trespass for mesne profits, the statute of limitations hars the plaintiff from recovering damages beyond the rental value of the premises for a longer period than three years prior to the commencement of the suit.
    H. Mesne profits cannot be sued for until the premises have been recovered by the plaintiff in ejectment.
    III. In. such action the defendant cannot controvert the plaintiff’s title after the latter has obtained judgment for the x>remises in ejectment.
    IV. In such action the plaintiff is not entitled to recover counsel-fees paid by him in prosecuting the ejectment suit. He is entitled to taxable costs only.
    STATEMENT OE THE CASE.
    This was an action of trespass for mesne profits, commenced March 11, 1871.
    On the trial of the cause before the chief-justice, the plaintiff read in evidence the record of a final judgment in an action of ejectment recovered by plaintiff’s testator against the defendant in this court on the 21th day of April, 1872. The plaintiff also proved that the rental value of the premises from the 1st of July, 1867, the date of the demise in the ejectment, to the time of the rendition of said judgment was ten dollars per month, and that during that part of said period not more than three years prior to the commencement of the present action the defendant received a rent and profit therefrom of $200, and that, in maintaining the said action of ejectment and recovering the premises aforesaid from the unlawful possession of said defendant, the said plaintiff was actually and necessarily put to an expense of $500 for legal services and counsel-fees, which sum was only a reasonable fee therefor.
    The plaintiff then rested, and prayed the court to instruct' the jury that, after a recovery in ejectment, the plaintiff is entitled to recover against the defendant in the so-called action of mesne profits, as a part of the damages resulting to him from the defendant’s trespass in unlawfully withholding from him the possession of the real estate, the reasonable and necessary counsel-fee (exclusive of the $20 attorney’s fee taxed) which the plaintiff was obliged to pay in maintaining in the ejectment suit his title and right of possession and in recovering the property.
    But the court declined so to charge or instruct the jury; and, on the contrary, instructed them that the plaintiff could not recover as damages in this action anything whatever beyond the rental value of the premises, or the amount actually received by the defendant for rent thereof during that portion of the period not more than three years prior to the commencement of this action. The counsel for the plaintiff excepted both to the refusal of the court to instruct the jury as prayed, and also to the opinion and instructions so given.
    The jury found in favor of the plaintiff for the sum of two hundred dollars, besides cost.
    Plaintiff moved the court to set aside the verdict and for a new trial on account of such rulings of the chief-justice. The court denied the motion, and an appeal was taken to the general term.
    
      William A. Meloy for plaintiff:
    The court erred in instructing the jury, in estimating the plaintiff’s damages, not to allow anything on account of his loss of the use of the premises during that portion of the time pending the action of ejectment more than three years before the commencement of this action of mesne profits. Our statute is the statute of Maryland, and the highest court of that State has settled the rule of law, in Mitchell vs. Mitchell, (1 Md., p. 55,) that the action of mesne profits cannot be maintained until after recovery of actual possession in the ejectment suit. This being the established rule of law, it would seem there was never a time when the suit might be brought until the recovery, that the statute could not commence to run until there was capacity to sue. This would appear good sense and just law, besides being calculated to promote peace (the very object of the statute of limitations) by taking away the inducement to knavishly protract the litigation. Nevertheless, in Mitchell vs. Mitchell the court was evenly divided upon this question (10 Md., 241) of the application of the statute, and so the law was left unsettled on this point.
    2. The court erred in its instruction to the jury denying the plaintiff indemnity for the damage done him through the necessity of employing counsel at a reasonable rate of compensation to prosecute the action of ejectment.
    
      The action is one of trespass. Its gravamen is the wrongful act of the defendant in withholding our property and compelling an appeal to the courts for its restoration. The relief prayed therein and allowed by the law is full indemnity for loss of every hind which directly and ex rei necessitate resulted to-the plaintiff from such wrongful act. Runnington on Eject., 498-500; Sedgwick on Damages, 124, 132-136; Adams on Eject., 391 ; Gulliver vs. Drinkwater, 2 T. R., 261; Goodtitle vs. Toombs, 3 Wils., 121; Symonds vs. Page, 1 C. & J., 34; Nowell vs. Roake, 7 B. & C., 403; Doe vs. Filliter, 13 M. & W., 47; Brookes vs. Bridges, 7 B. Mon., 471; Denn vs. Chubb, 1 Coxe, (N. J.,) 466.
    The examination of these authorities shows beyond all question—
    1. That it has been immemorially, and without a single-exception, the practice to allow more or less of the costs and expenses incurred in the ejectment suit as damages, to be recovered in the action of mesne profits.
    2. That this allowance has in every instance been made, under the principle that the party was entitled to full -indemnity.
    
    
      3. That the employment and suitable compensation of attorneys and counsel to conduct the suit in ejectment, and maintain the party’s right therein, has been recognized as proper and necessary, and the consequent expenses, as an element in the estimate of these damages, just as fully as has that of producing witnesses and making the legal compen sation to them, of invoking the aid of a jury and making the legal compensation to that jury, of procuring the clerk of the court to perform his functions in the ejectment suit and making the legal compensation to him; and all these under the same principles or rules of damages and of evidence.
    From these established rules it equally follows that what■ever a plaintiff in ejectment pays his attorney and counsel, in prosecuting the action and obtaining the restoration of his property, forms a part of his damages, recoverable in the action of mesne profits, provided only that the expenditure was necessary and reasonable. There is but one reported case in all the books not in harmony with this proposition — • the case of White vs. Clack, in one of the Tennessee reports— in which the court, in support of its decision, refers to but two authorities, viz, 3 J. R., 481; 2 Stark. Ev., 313; neither of which countenance in any degree the fallacious distinction made between the allowance of costs taxed and of costs not taxed.
    Practically, we have no costs allowed in the District of Columbia save the legally-established fees to the clerk, marshal, witnesses, and jurors. No matter how many trials there may have been; no matter whether the trial lasted half an hour or twenty days, only one $20 attorney-fee could be allowed. To this extent, indeed, our law is a denial of justice, for in the most righteous cause late success may be more ruinous than early utter disaster. Our allocatur of costs is purely arbitrary, allied to no principle of reason; but that of the English law declaredly springs from the idea that the successful party ought to be indemnified for all his necessary and reasonable trouble and expenditure in the litigation. The costs in the English courts are taxed, under the most liberal system based upon this proposition of law, in each case by a master on the reference of the court. Retaining-fees, counsel-fees, refreshers for counsel, limited in number only by the master’s judgment of what was proper; expenses of briefs, copies of briefs, translations, copies of documents, short-hand reports, examinations of pedigrees by antiquarian experts, &c., all are passed upon and alloweed as taxed costs. Harrison’s Dig., 2639, 2640; Fisher’s Dig., 2093-2102.
    
      
      John E. Norris for defendant:
    
      Barnard vs. Poor, 21 Pick., 382; Lincoln vs. Saratoga Railroad, 23 Wend., 432; Bay vs. Woodsworth, 19 Curtis, 534; 13 How., 369.
    The case of Barnard vs. Poor, above cited, was an action on the case for carelessly and negligently setting a fire on his own land, whereby the plaintiff’s property, on the adjoining land, was consumed; the court, Chief-Justice Shaw, deciding that “ counsel-fees, or other expenses of prosecuting the action, beyond taxed costs,” are not recoverable.
    The case of Lincoln vs. Saratoga and Schenectady Railroad Company, above cited, was an action on the case for an injury sustained to the person, a passenger, through the carelessness of the agent of the company. Nelson, G. J., decided that the “ charge, as expenses beyond taxable costs and counsel-fees in conducting the suit, was erroneous. These have been fixed by law, as applicable to cases sounding in damages in debt.”
    In the case of Day vs. Woodsworth, above cited, the Supreme Court of the United States, Judge Grier, delivering the opinion of the court, says that counsel-fees are not to be included in and allowed as part of the damages in any action at law.
   Mr. Justice MacArthur

delivered the opinion of the court:

A question arises in this case whether, in trespass for mesne profits, the statute of limitations bars the plaintiff from recovering damages beyond the rental value of the premises in dispute for a period more than three years prior to the commencement of the action. Our statute of limitations comes from Maryland, and requires this remedy to be brought within three years ensuing the cause of action. This pro-. vision is important, in connection with what is now settled law, viz: that mesne profits cannot be sued for until the premises have been recovered in ejectment. Mitchell vs. Mitchell, 1 Md., 55, and 10 id., 241; Baron vs. Abeel, 3 J. R., 482; 1 Adams on Ejectment, 383. Can the defendant plead this statute so as to protect himself from all the rents and profits, except for three years ? There is no exception which relieves this action from the operation of the statute. But it is argued that the statute cannot be considered as running upon any portion of the plaintiff’s claim until the judgment in ejectment is rendered, as it is only from that time the right of action accrued. This equitable consideration, however, loses much of its force when we remember that the plaintiff was entitled during the whole period that the defendant held wrongful possession to maintain an action of trespass quare clausum-fregit for injuries done to the premises and for antecedent profits in the shape of damages. Gill vs. Cole, 1 Harr. & Johns, 402. If he has omitted to pursue that remedy at the proper time, and delayed to assert his claim until he obtained judgment in ejectment, which precludes the defendant from controverting his title, he. cannot now be allowed to recover as rents and profits beyond the period limited absolutely by law. The ruling of the court below on this point must be affirmed.

The other question relates to the right of the plaintiff to recover counsel-fees as part of the expenses incurred in prosecuting the ejectment suit. We find no case in which counsel-fees are allowed as part of the damages except the taxable costs in the ejectment. The Supreme Court has decided in Day vs. Woodworth, 13 How., 369, that counsel-fees are not to be included in and allowed as part of the damages in any action at law. We are, therefore, of opinion that the ruling of the court below upon the instruction requested by the plaintiff was correct.

Judgment affirmed.  