CHAPTER XVIII.

APPEARANCE.

How made. The appearance of the plaintiff, is made by the entry of the action; that of the defendant, by the entry of his name or that of his attorney, upon the clerk's docket, under that of the action, and this entry is usually made by the attorney himself.

When to be made. A rule of the Supreme Judicial Court requires that the name of the appellant or his attorney should be entered, at the time of the entry of the action, and that of the appellee or his attorney, within two days after the entry of the action or appeal, for the want of which, a default will be ordered.1

In the Court of Common Pleas, no particular time is fixed for the defendant's appearance. It must, however, be made before, or at the time of calling the docket, which varies in different counties, or he will be defaulted. But it is provided by statute,2 that if the defendant, after having been defaulted, shall come in before the jury is dismissed, and shall pay to the opposite party his costs, or such part as the court shall order, the default shall be stricken off. This is usually done without objection, and costs are rarely, if ever, required to be paid.

1

If the defendant do not appear until the jury is dis

Reg. Gen. S. J. C. 7. Appendix A.

2 Stat. 1784. ch. 28. s. 7.

missed, no express power is given to the Court of Common Pleas, to take off the default. Probably, if a good excuse should be offered for the delay, and the defendant should satisfy the court, that he had a meritorious defence, it would be done. Whether, if refused, the remedy of the defendant should be by exceptions, or by an application to the Supreme Court for a review, is doubtful.

CHAPTER XIX.

ROUTINE OF BUSINESS IN THE COURTS, &c.

SECT. I. IN COURT OF COMMON PLEAS.

The proceedings in a suit, which have thus far been considered, are those which take place, before the sitting of the court, to which the action is returnable.

For convenience of reference, a table of the terms of the courts, is added in the Appendix.'

Calling the docket. A list of all writs entered, having been made by the clerk, in the docket of the court, in the order in which they are delivered to him for entry, by the attornies, - at an early day in each term, the docket is called by the judge, that is, all the cases are called over by him, in their order on the docket. The actions which have been continued from preceding terms, are always called in their order, on the first day of the term; and those which are newly entered, upon some subsequent day, during the term.2

At the calling of the dockets, the attornies on both sides of all the actions, should be present, to answer to the actions as they are called, in order that they may be disposed of.

1 Appendix C.

2 Note. There is no general rule, as to the time of calling the new docket, in the C. C. Pleas. In the county of Suffolk, it is always called on Tuesday, of the second week, in each term, in pursuance of the fourth rule referred to, in the 35th Rule C. C. Pleas. Appendix B:--and in the other counties, generally on the second or third day of the term.

As each action is called, it is, in some way, disposed of, either by default, where the defendant fails to appear,' or in such manner as the counsel signify to the court, as by nonsuit, or by entering "neither party," or by continuance, either general or special, or on some condition, as that the defendant shall be defaulted at the next term, or that the judgment in the court below, shall be final, or by continuance under the statute, because the defendant is out of the Commonwealth, which fact should be suggested by the plaintiff's attorney, or, if there be no question of fact to be tried, by being marked "law," or "no jury," or by demurrer to the Supreme Court, or, being signified by the counsel, on either side, to be for trial, by being put on the trial list.

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At the time an action is called as above, it is usual to make those motions, which are not required to be in writing, and which are granted of course, such as to amend, to plead double, calling for a bill of particulars, &c. The fact is minuted by the clerk, on the docket, and the right or claim is thereby secured.

It is not necessary, that these motions should be made at the calling of the docket, a certain number of days, in each term, being allowed, within which they may be made, as will be specified under the several heads; but the practice stated, is usual.

Trial list. The actions both from the old and new docket, intended to be tried, having thus been designated, a separate list of them, called the trial list, is made out by the clerk, in the order in which the actions stand on the general dockets, the continued actions

1 Stat. 1784, ch. 28. s. 7. 2 Stat. 1797. ch. 30. s. 5.

taking precedence of the new entries. The juries having then been empannelled, as will be considered hereafter, the court is ready to proceed to business; and the several cases contained in the trial list, after the pleadings have been filed, and the issues formed in them, as will be considered in the succeeding chapter, come on for trial, in their order on the list.

In our practice, therefore, if an action be put on the trial list, by either party, at the time the docket is called, no further notice is required to be given to the other, that a trial is intended to be had therein; and both parties will be holden to be ready for trial, when the case comes on in its order, unless good reason to the contrary be shewn. But if an action be put upon the trial list, at a subsequent day of the term, by either party, as it may be, by leave of court, special notice will be required to be given to the opposite party.

By a rule of the Court of Common Pleas,2 however, in the following counties, namely: Berkshire, Franklin, Hampshire, Hampden, Worcester, Middlesex, Essex, Norfolk, Bristol, and Plymouth, a party, to obtain a trial at the first term, besides complying with the foregoing condition, must give notice to the adverse party, seven days before the sitting of the court, that he shall expect a trial at such term.

Law sittings. The judges of the Court of Common Pleas, occasionally sit at chambers, either singly or together, for the purpose of hearing and determining cases on trustees' answers, motions for new trials,"