DE BENE ESSE.
General.—A simple and absolute submis sion to the jurisdiction of the court.
Gratis.—One made before the party has been legally notified to appear.
Optional.—One made where the party is not under any obligation to appear, but does so to save his rights. It occurs in chancery practice, especially in England.
Special..—That which is made for certain purposes only, and does not extend to all the purposes of the suit.
Subsequent.—An appearance by the defend ant after one has already been entered for him by the plaintiff. See Daniell, Ch. Pract.
Voluntary.—That which is made in answer to a subpoena or summons, without process. 1 Barbour, Ch. Pract. 77.
3. How to be made.—On the part of the plaintiff no formality is required. On the part of the defendant it may be effected by making certain formal entries in the proper office of the court, expressing his appearance, 5 Watts & S. Penn. 215; 2 Ill. 250 ; 3 id. 462; 15 Ala. 352 ; 18 id. 272 ; 6 Mo. 50; 7 id. 411 ; 17 Vt. 531 ; 2 Ark. 26 ; or, in case of arrest, is effected by giving bail, by putting in an answer, 4 Johns. Ch. N. Y. 94, or a demurrer. 6 Pet. 323.
By whom to be made.—In civil cases it may in general be made either by the party or his attorney ; and in those cases where it is said that the party must appear in person, it is sufficient if it is so entered on the record ; although, in fact, the appearance is by attor ney. 2 Johns. N. Y. 192; 8 id. 418; 14 id. 417.
An appearance by attorney is, in strictness, improper where a party wishes to plead to the jurisdiction of the court, because the ap pointment of an attorney of the court admits its jurisdiction, 1 Chitty, Plead. 398; 2 Wms. Saund. 209 b; and is insufficient in those cases where the party has not sufficient capacity to appoint an attorney. Thus, an idiot can appear only in person, and as a plaintiff he may sue in person. or by his next friend_ 4. An infant cannot appoint an attorney ; he must, therefore, appear by guardian or prochein ami.
A lunatic, if of full age, may appear by attorney ; if under age, by guardian only.
2 Wms. Saund. 335 ; id. 332 (a), n. (4).
A married woman, when sued without her husband, should defend in person. 1 Wins. Saund. 209 b. And see 1 Chitty, Plead. 398_ In criminal cases the personal presence in court of the defendant is often necessary. See 2 Burr. 931; id. 1786; 1 W. Blackst. 198.
The effect of an appearance by the defend ant is, that both parties are considered to be in court.
And an actual appearance in person is ne cessary to give effect in personam to the jndg ment of a sister state. But a mere special appearance is not sufficient without personal service. 37 N. H. 9. See CONFLICT OF LAWS.
5. In criminal cases the personal appear ance of the accused is often necessary. The verdict of the jury must, in all cases of trea son and felony, be delivered in• open court, in the presence of the defendant. In cases of misdemeanor, the presence of the defendant during the trial is not essential. Bacon, Abr. Verdict, B; Archbold, Crim. Plead., 14th ed. 149.
6. No motion for a new trial is allowed unless the defendant, or, if more than one, the defendants who have been convicted, are present in court when the motion is made.
3 Maule & S. 10, note ; 17 Q. B. 503 ; 2 Den. Cr. Cas. 372, note. But this rule does not apply where the offence of which the defend ant has been convicted is punishable by a fine only, 2 Den. Cr. Cas. 459 ; or where the defendant is in custody on criminal process.
4 Barnew. & C. 329. On a charge of felony, a party suing out a writ of error must appear in person to assign errors; and it is said that if the party is in custody in the prison of the county or city in which the trial has taken place, he must be brought up by habeas cor pus, for the purpose of this formality, which writ must be moved for on affidavit. This course was followed in 2 Den. Cr. Cas. 287; 17 Q. B. 317; 8 Ell. & B.54 ; 1 Dearel. & B. Cr. Cas. 375.
Where a defendant is not liable to personal punishment, but to a fine, sentence may he pronounced against him in his absence. Chitty, Crim. Law, 695. See 2 Burr. 931; a id. 1780.