White v. Clack , 32 Tenn. 230 ( 1852 )

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.