#### McAlister *vs*Brents &c.

Error to the Marion Circuit.

*Fjectment. Practice in Suits at Law. Attortiies’ Fees.*

Ejectment. *Case*111.

*September*13.

Case stated. In actions of *e*jectment, waste, trespass, *quare clausum fregit,*the lee to be taxed by the Clerk against the unsuccessful party is five dollars.

Chief Justice Mabshall

delivered the opinion of the Court.

This writ of error brings up for revision a judgment correcting the taxation of costs in-an action of ejectment, which was dismissed, on motion of the plaintiff, at the same term at which,, as the record shows, the tenant in possession was made a defendant, being the second term after the service of the common order upon him. An attorney was properly employed by the tenant who was made a defendant, and an attorney’s fee was, of course, chargable, as legal costs, upon the dismission by the plaintiff. The only question with regard to this point is, whether the fee. should have been charged at $10, or at $5.

The act of 1820, regulating the manner of taxing' attornies’ fees, (I *Stat. Law,*474) provides that “on all decrees where the title Or bounds of land shall or may come in question, or on judgments in real actions, the Clerks, &c. shall tax the sum of ten dollars. In other cases, the' Clerk of the Court of Appeals and General Court, shall tax five dollars; and the Circuit Court Clerks shall, in mixed or personal actions, where the title or bounds of land shall come in question, tax the sum of five dollars f and in all other cases, two dollars and fifty cents.” It is contended that ejectment being, in its effect, a real action, should be so regarded i-n the application of this statute; and if the distinction had been made'.between real and personal actions only,-so-that ejectment must have been placed in one of these two classes,, we should, perhaps, have felt authorized to regard it as belonging to the former class. But as the statute adopts the well known classification of actions? as being real, personal, or mixed, we feel bound to construe these terms according, to their established signifi*484cation, and to consider ejectment as comprised in the division or class of mixed actions, where we find it placed in the received treatises on the subject. Indeed, as the action of waste has never been of frequent use in this State, we must suppose that the action of ejectment was particularly in view in regulating the fee in mixed actions, though waste is undoubtedly comprised in the same regulation, as is also trespass *quare clan,sum fregit,*or any other personal action, in which the title or bounds of land shall come in question. And as, in all these cases, the tax fee is fixed at five dollars, the reduction from $10, taxed by the Clerk, to $5, as allowed by the act, was proper.

Neitherparty has mand a trial of the^teirn111 at animare made— and one who makes himself defendant cannot attendance "and neSes°maf 'the term at which he is made defendant, _ when. the atsVme1tmm.Se<1

The only remaining question is, whether it was correct †0 tax against the plaintiff the service of subpoenas and the attendance of witnesses on the part of the tenant in possession, before he was made a defendant on the reccrrd; the action appearing to have been dismissed, not on]y the same term at which he was made defend-*J*ant, but at the same time, or immediately afterwards, It appears that, in this case, subpoenas were served and witnesses attended at the term next after that to which the common order was returned, and also at the succeedmg term, being that at which the defendant was made, and the action dismissed. And the common order seems to have been returned executed, at the same term at which the declaration and notice were returned and the action entered in Court. At that term the tenant might have made himself a defendant, but no judgment by default could have been taken, because the common order had not been served ten days before the term. At the succeeding term, on the failure of the tenant, or some one for him, to appear and make defense, the plaintiff might have taken a judgment by default; and so at the following, or any subsequent term. But according to the general practice, as we understand it, neither party has a right to demand a trial against the consent of the other, at the term at which the defendant is made, unless for some special reason, it should be made the condition ' of entering the defense, that an immediate trial should be had. Until a defendant is *485made, the plaintiff does not know that he will be required to make any proof; and considering the general character of the proofs and trials in ejectment, it would be unreasonable to require him to make the necessary preparation for a contest, until he should be apprised by the record, that one would take place, in which, if successful, he might recover the costs of preparation. And If heys^not bound to be ready for trial, the defendant, of course, should not be. As the plaintiff may, at any term after a sufficient service of the common order, take a judgment by default unless a defendant is made, and as the tenant may, at any term after service, cause a defendánt to be made, it is clear that each party has it in his power to take such steps as will place the action on the footing of ordinary suits, and prevent unreasonable delay. And when it is considered that, on making a defendant, the action assumes a new shape, and that according to'the mode of proceeding in England, and in some, perhaps in most of the original States of the Union, a new declaration is then delivered against the real defendant on the record, it would seem to be contrary to the general object of all rules of practice, which is to secure a fair trial in reasonable time, to say that either party should, at that moment, have the right, as a matter of course, to coerce a trial.

Under this view of the subject, we are of opinion that, until a defendant is made, neither party is bound to prepare for a contested trial, and that, although if they go into trial immediately upon the entry of a defence, the successful party will be entitled to the costs of preparation, as in ordinary cases, the defendant is no more entitled to the cost of witnesses, upon an immediate dismission of the suit, when a defendant is made, than the plaintiff is entitled to similar costs when, no defendant having been made, he takes a judgment by default, against the casual ejector. Upon the face of the record of the action of ejectment, the dismission, having taken place immediately upon the entry of the defence, we are of opinion that the defendant was not entitled to recover the cost growing out of the summoning and attendance of witnesses. And we are fur*486ther of opinion, that the parol proof, going to show thaf a motion to have the tenant entered as a defendant, had been made and allowed at the return day of the common order,, but not entered on the record, is entitled to no effect upon the question.

If there has been entered upon the record an agreement to try at the term at ’ which defendant' is made, the successful parly may recover costs.

*Shuck*for plaintiff; *Rountree Sp Fogle*for defendants*.

If there had been an agreement between the parties, that the case should be tried as soon as' a defendant was made, this might, in some form, perhaps, have been made effectual to secure compensation for the costs, &c. of preparing, lor trial. But although the failure to enter the defendant, (.if the motion was made and allowed), was, in the first instance,-the fault of the Clerk, it might and should have been remedied at the same term, by bringing the omission- to the notice of the Court; or a similar motion might ha-ve been made at the first, as it was in fact at the second succeeding term. But the want of a record entry of a defendant, could not be supplied by parol proof of the allowance of the motion at a previous term.

Wherefore, the judgment is -affirmed.