Page:North Dakota Reports (vol. 3).pdf/399

 relating to costs has never received judicial construction. Doubtless, the clause of the section which allows, as an element of the damages, the prevailing party to recover the “costs, if any, of recovering the possession,” voices the better rule of law, as the law stood in the State of New York when the commissioners of the Code made their report to the legislature of that state. At that time it was allowable, and it may be done in this state; to first sue for the possession, and, if successful, the prevailing party could institute another action for damages for withholding, or for rents and profits, or waste. Comp. Laws, § 4932; Sedg. & W. Tr. Title Land, § 650 et seg. In a case where the party had been successful in a former action brought for the sole purpose of recovering the possession of the land, and the costs of such former action, for any reason, had not been recovered, the rule was that such costs, i. e. the taxable costs incurred in the action to recover possession, could be shown as a distinct element of damages in in the action for wrongful occupation. It is the rule which is voiced in the clause of § 4601, supra, which allows the recovery of “the costs, if any, of recovering the possession.” In this case the evidence showing that plaintiffs had paid out a large sum as attorneys’ fees for prosecuting this action was inadmissable. It did not come within the statutory rule, because there had never been any costs incurred in a former action to recover the possession. The attorney's fee paid in this action was paid for prosecuting a suit for damages, as well as for the recovery of the possession; and in this suit,as has been seen, the statute has, besides disbursements, made allowances by way of costs to reimburse plaintiff for his expenditures. To recover double costs would be oppressive. We go further, and say that, if there had been a former action for the recovery of the possession alone, attorneys’ fees paid in the former action could not be included as an element of damages in this action. There is some conflict of authority, but the general rule, and we think the better rule, is that sums paid out or incurred for attorneys’ fees should not, in this class of cases, be allowed to swell the damages. In White v. Clack, 2 Swan, 230,