Dunham v. Heyden

Per Curiam. The first exception is, that the justice ad* journed the cause from the 17th to the 27th of February5. at the instance and on the oath of the plaintiff below, that he could not safely proceed to trial for the want of a material witness then absent from the county. The only authority to adjourn, unless at the instance of the defendant, is contained in the 2d section of the act, and such adjournment must not exceed six days-. In the present case, however, the defendant below appeared on the day to which the cause was adjourned, and cross-examined the plaintiff’s witness; this cured the irregularity of the adjournment. It woúld be unjust and extraordinary to reverse a judgment after a trial on the merits, by listening to an objection, which the party himself had waived by his voluntary appearance. It is not like the case where the defendant makes oath that he cannot safely proceed to trial for the want of a material witness, and where he is improperly forced to trial, without the testimony to which he is entitled. The foundation of the demand of the plaintiff below was, that the defendant below had become security for one Whitehead, who had been taken on a warrant at the suit of the plaintiff' below; it was shown by the record of the justice before whom Whitehead had been sued, that the security was for the appearance of Whitehead, agreeable to the requisition of the statute, and that ho [383] did not appear on the day appointed, personally, but appeared by attorney, and a trial was had and judgment rendered against Whitehead for 20 dollars and 97 cents. On the day after the judgment, the defendant below offered to render Whitehead to the justice, who refused to have any concern with him. The question is, what is the effect of an undertaking for the appearance of a defendant on a warrant? Must it be a personal appearance, or may it be by attorney ? We think the appearance mentioned in this section must mean a personal appearance. Where the act gives the process by warrant, it is where either the defendant is without a family or a freehold, or where the plaintiff is a non-resident; and in the latter case, the trial is to be within three days, and the giving security is not required. The warrant is intended, except in the single case of a non-resident plaintiff, as a means to prevent the escape of the defendant, and as a security for the plaintiff’s demand ; if, then, the defendant, on whose person the plaintiff has a lien, can appear by attorney, he frustrates the plaintiff’s demand. We have a right to consider the word appearance, in reference to the rights of the plaintiffs, and with a view to give effect to the intention of the legislature, as a personal appearance. On the whole, the judgment must be affirmed.