
    White vs. Clack.
    AworNES'S Fees. Not recoverable m an action for mesne profits. The costó ■which may be recovered in action for mesne profits are only the legal and proper costs taxed in the action of ejectment, not including attorney’s fees.
    Upon the trial of this action of ejectment in the yircuit court of Giles county at its August Term, 1852, MaetiN, Judge, presiding, there was judgment for the plaintiff, and the defendant appealed in error.
    
      T. M. 'JoNes, for plaintiff in error
    cited 1 Smith, L. C., 527; 3 "Wils., 121; 1 Coxe, 466; 3 Johns. 481; 1 B. Mon., 198, 200.
    BRiGirr, for defendant in error,
    cited 3 Johns. 481; 1 Harr., & Johns., 403.
   McKiNNEY, J.,

delivered the opinion of the court.

This was an action of trespass for mesne profits. The only question we think necessary to be considered, arises upon the charge of court.

The court instructed the jury, that in addition to the mesne profits, the plaintiff would also be entitled to recover such reasonable counsel fees, as maf have been paid by him in the prosecution of the action of ejectment.

In this, we think, there is error.

Notwithstanding some discrepancy in the decisions upon this point, the established doctrine seems to be, that, in trespass for mesne profits, the plaintiff may recover not only the reasonable value of the rents and profits, but, also, the costs of the ejectment.

But, by this we understand to be meant, the legal and proper costs taxed in the action of ejectment, not including counsel. fees, or other expenses incurred by the plaintiff in the prosecution of the suit. 2 Stark. Ev., 313; 3 John. Rep., 481.

Upon this ground the judgment must be reversed and the case be remanded for a new trial.  