2. The appearance, with all other subsequent pleadings supposed to take placein 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.
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.