2.
The appearance, with all other subsequent pleadings supposed to take
place in court, should (in accordance with the ancient practice) purport
to be in term time. It is to be observed, however, that though the
proceedings are expressed as if occurring in term time, yet, in fact,
much of the business is now done, in periods of vacation.
3.
The appearance of the parties is no longer (as formerly) by the actual
presence in court, either by themselves or their attorneys; but, it must
be remembered, an appearance of this kind is still supposed, and exists
in contemplation of law. The appearance is effected on the part of the
defendant (when be is not arrested) by making certain formal entries in
the proper office of the court, expressing his appearance; 5 Watts &
Serg. 215; 1 Scam. R. 250; 2 Seam. R. 462; 6 Port. R. 352; 9 Port. R.
272; 6 Miss. R. 50; 7 Miss. R. 411; 17 Verm. 531; 2 Pike, R. 26; 6 Ala.
R. 784; 3 Watts & Serg. 501; 8 Port. R. 442; or, in case of arrest,
it may be considered as effected by giving bail to the action. On the
part of the plaintiff no formality expressive of appearance is observed.
4.
In general, the appearance of either party may be in person or by
attorney, and, when by attorney, there is always supposed to be a
warrant of attorney executed to the attorney by his client, authorizing
such appearance.
5.
But to this general rule there are various exceptions; persons devoid
of understanding, as idiots, and persons having understanding, if they
are by law deprived of a capacity to appoint an attorney, as married
women, must appear in person. The appearance of such persons must
purport, and is so entered on the record, to be in person, whether in
fact an attorney be employed or not. See Tidd's Pr. 68, 75; 1 Arch.
Pract. 22; 2 John. 192; 8 John. 418; 14 John. 417; 5 Pick. 413; Bouv.
Inst. Index, h. t.
6.
There must be an appearance in person in the following cases: 1st. An
idiot can appear only in person, and as, a plaintiff he may sue in
person or by his next friend 2d. A married woman, when sued without her
hushand, should defend in person 3 Wms. Saund. 209, b and when the cause
of action accrued before her marriage, and she is afterwards sued
alone, she must plead her coverture in person, and not by attorney. Co.
Litt. 125. 3d. When the party pleads to the jurisdiction, be must plead
in person. Summ.on Pl. 51; Merrif. Law of Att. 58. 4th. A plea of
misnomer must always be in person, unless it be by special warrant of
attorney. 1 Chit. PI. 398; Summ. on PI. 50; 3 Wms. Saund. 209 b.
7. An infant cannot appoint an attorney; he must therefore prosecute or appear by guardian, or prochein ami.
8. A lunatic, if of full age, may appear by. attorney; if, under age, by guardian. 2 Wms. Saund. 335; Id. 332 (a) n. (4.)
9.
When an appearance is lawfully entered by the defendant, both parties
are considered as being in court. lmp. Pr. 215. And if the defendant
pleads to issue, defects of process are cured but not, if he demurs to
the process, (I Lord Raym. 21,) or, according to the practice of some
courts, appears de bene esse, or otherwise conditionally.
10.
In criminal cases, the personal presence of the accused is often
necessary. It has been held, that if the record of a conviction of a
misdemeaner be removed by certiorari, the personal presence of the
defendant is necessary, in order to move in arrest. of judgment: but,
after a special verdict, it is not necessary that the defendant should
be personally present at the argument of it. 2 Burr. 931 1 Bl. Rep. 209,
S. C. So, the defendant must appear personally in court, when an order
of bastardy is quashed and the reason is, he must enter into a
recognizance to abide the order of sessions below. 1 Bl. Rep. 198. So,
in a case, when two justices of the peace, having confessed an
information for mishehaviour in the execution of their office, and a
motion was made to dispense with their personal appearance, on their
clerks undertaking in court to answer for their flues, the court
declared the rule to be, that although such a motion was subject to the
discretion of the court either to grant or refuse it, in cases where it
is clear that the punishment would not be corporal, yet it ought to be
denied in every case where it is either probable or possible that the
punishment would be corporal; and therefore the motion was overruled in
that case. And Wilmot and Ashton, Justices, thought, that even where the
punishment would most probably be pecuniary only, yet in offences of a
very gross and public nature, the persons convicted should appear in
person, for the sake of example and prevention of the like offences
being committed by other persons; as the notoriety of being called up to
answer criminally for such offences, would very much conduce to deter
others from venturing to commit the like. 3 Burr. 1786, 7.
APPEARANCE DAY. The day on which the parties are bound to appear in court. This is regulated in the different states by particular provisions.
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