APPEARANCE

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APPEARANCE

APPEARANCE, practice. Signifies the filing common or special bail to the action. 2. The appearance, with all other subsequent pleadings supposed to takeplace in court, should (in accordance with the ancient practice) purport tobe in term time. It is to be observed, however, that though the proceedingsare expressed as if occurring in term time, yet, in fact, much of thebusiness is now done, in periods of vacation. 3. The appearance of the parties is no longer (as formerly) by theactual presence in court, either by themselves or their attorneys; but, itmust be remembered, an appearance of this kind is still supposed, and existsin contemplation of law. The appearance is effected on the part of thedefendant (when be is not arrested) by making certain formal entries in theproper 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 aseffected by giving bail to the action. On the part of the plaintiff noformality expressive of appearance is observed. 4. In general, the appearance of either party may be in person or byattorney, and, when by attorney, there is always supposed to be a warrant ofattorney executed to the attorney by his client, authorizing suchappearance. 5. But to this general rule there are various exceptions; personsdevoid of understanding, as idiots, and persons having understanding, ifthey are by law deprived of a capacity to appoint an attorney, as marriedwomen, 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 anattorney be employed or not. See Tidd's Pr. 68, 75; 1 Arch. Pract. 22; 2John. 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 personor by his next friend 2d. A married woman, when sued without her husband,should defend in person 3 Wms. Saund. 209, b and when the cause of actionaccrued before her marriage, and she is afterwards sued alone, she mustplead her coverture in person, and not by attorney. Co. Litt. 125. 3d. Whenthe 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 inperson, unless it be by special warrant of attorney. 1 Chit. Pl. 398; Summ.on Pl. 50; 3 Wms. Saund. 209 b. 7. An infant cannot appoint an attorney; he must therefore prosecute orappear 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, bothparties are considered as being in court. Imp. Pr. 215. And if the defendantpleads to issue, defects of process are cured but not, if he demurs to theprocess, (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 oftennecessary. It has been held, that if the record of a conviction of amisdemeanor be removed by certiorari, the personal presence of the defendantis necessary, in order to move in arrest. of judgment: but, after a specialverdict, it is not necessary that the defendant should be personally presentat the argument of it. 2 Burr. 931 1 Bl. Rep. 209, S. C. So, the defendantmust appear personally in court, when an order of bastardy is quashed andthe reason is, he must enter into a recognizance to abide the order ofsessions below. 1 Bl. Rep. 198. So, in a case, when two justices of thepeace, having confessed an information for misbehavior in the execution oftheir office, and a motion was made to dispense with their personalappearance, on their clerks undertaking in court to answer for their flues,the court declared the rule to be, that although such a motion was subjectto the discretion of the court either to grant or refuse it, in cases whereit is clear that the punishment would not be corporal, yet it ought to bedenied in every case where it is either probable or possible that thepunishment would be corporal; and therefore the motion was overruled in thatcase. And Wilmot and Ashton, Justices, thought, that even where thepunishment would most probably be pecuniary only, yet in offences of a verygross and public nature, the persons convicted should appear in person, forthe sake of example and prevention of the like offences being committed byother persons; as the notoriety of being called up to answer criminally forsuch offences, would very much conduce to deter others from venturing tocommit the like. 3 Burr. 1786, 7.

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