Bowlsby v. Johnston

Hornblower, C. J.

On the return day of the summons, before the justice, Bowlsby, the defendant below did not appear in person, but sent his son Silvester Bowlsby, with a power of attorney, to appear and act for him. The Justice admitted the son to represent his father, as appears by the record; for the record states that “ his son filed for the defendant his plea, by a power of attorney, and craved an adjournment, which I granted.” On the day to which the cause stood adjourned, the plaintiff appeared, and the defendant again appeared by his said son, but the justice refused to permit'him to make ..any defence, and after hearing the plaintiff’s evidence gave judgment in his favor.

From this judgment the defendant appealed to the Common Pleas of Hunterdon, and that court dismissed the appeal, on *351 the ground, that it was a judgment rendered in the absence of the defendant. And it is now insisted by the counsel for the appellee, 1st, that a defendant must be present in propria persona, to entitle him to an appeal, and 2dly if not, it must at least appear on the record that his attorney was duly authorized. As long ago as in 1809, in the case of M’Whorter v. Bloom, 2 Pen. It. 545, it was decided by this court, to be a matter of sound discretion in the justice, whether to admit a defendant to appear by an attorney in fact or not; and in the case of Pierson v. Foster, immediately succeeding the ease just cited (2 Pen. It. 546) in which the plaintiff below, who was a female, had appeared by an attorney in fact, the court reiterated the same doctrine. I see no good reason for departing from this rule, after a long course of practice i:i conformity with it.

I11 the exercise of this discretion the justice admitted the attorney and recognized his right to appear and act for the defendant on the return of the summons. This was an admission of him, as attorney for the defendant, in that cause ; and the justice ought not suddenly, without assigning any cause, and without notice to the defendant, to have rejected him and proceeded as in the absence of the defendant. The right of the defendant to appear by his attorney is fully recognized in the case of Folly v. Smith, 7 Halst. Rep. 189, and if any proof of the due execution of the power of attorney was called for by the justice, Ave are in this case, as Avas done in the one just cited, to presume it Avas made out to his satisfaction, on the return day of the summons. It is a matter for the justice to determine, and no formal power of attorney, under hand and seal, need be produced or proved, if the justice is otherwise satisfied of the authority of the attorney. The defendant was then present by his attorney at the time of trial; the justice overruled his defence and gave judgment against him in his presence. The appeal ought not therefore to have been dismissed on the ground of its being a judgment in the absence of the defendant.

Let a mandamus be issued.

Cited in Pharo v. Parker, 1 Zab. 755;