forward and deposit it with the justice of the peace, no costs which shall thereafter accrue shall be adjudged against him, but the plaintiff shall pay the same."

Irregularity of process, whether it be void or voidable, is cured by appearance without objection. A defendant cannot take advantage of any error or defect in the process, after he has appeared to it, even though the process be void, and he was at the time ignorant of the defect.1

All objections to the issuing, the form, or the service or return of process, must be taken advantage of the very first opportunity; and if the defendant plead to the suit, or take any similar step, which supposes the process to be valid, he cannot afterwards object to the process itself.2

But the mere act of appearing to the process, for the purpose of raising the objection, cannot be construed into a waiver of its defects; for if this were the case, there could be no such thing as an objection to process a

The constable's return upon the process is conclusive upon the defendant, and the truth of it cannot be traversed or questioned by him in that suit, on a plea in abatement or otherwise, in the cause in which it issues. But if it be false in any particular, an action will lie against the constable, at the suit of the party injured.*

The return is the evidence upon which the statute authorizes and requires the justice to proceed. He must therefore obtain jurisdiction of the person of the defendant by virtue of the return, and the judgment which may be subsequently rendered, will protect the justice, the party, and the officer who may be instrumental in enforcing it. The return of the officer will be conclusive upon the defendant so far as the proceedings in that suit are concerned.5

VII. OF SECURITY FOR COSTS.

Rev. Stat. 327, Chap. LIX. Sec. 83. "No person who is not a resident of this State shall commence any action before a justice of the peace until such non-resident shall file with the justice before whom such action may be brought, a bond, with sufficient security for the payment of all costs which may be awarded against the plaintiff, should he fail in

(1) 1 Scam. 251.
(4) 14 Johns. 481-2.

(2) 17 Johns. 63; 1 Scam. 266.
(5) 3 Wend. 302.

(3) 14 Johns. 481.

his suit; which bond shall be in the following form, as near as may' be, inserting the names of the parties, the county and State:

I, E. F., do enter myself security for all costs that may accrue in the above case this

day of

18-.

SEC. 84. Such bond shall be signed by the security, and if the said plaintiff shall be cast in his suit, discontinue or make default, and shall not within ten days thereafter pay to the justice all the costs that may have been occasioned to the defendant, to the justice and constable, jurors or witnesses, the justice shall issue his execution against the security for the amount thereof, accompanied with a bill of costs, in which shall be set down every particular charged. And if any suit shall be commenced by a non-resident as aforesaid, without filing a bond for costs as aforesaid, the suit shall be dismissed on the motion of the defendant, and the plaintiff shall be liable to pay all costs occasioned thereby, which may be recovered before any justice of the county, in the name of the party injured."

"Nothing is more certain," to use the language of our supreme court,1 “from the act regulating the proceedings before justices of the peace in civil actions, than that a non-resident plaintiff shall not institute a suit until he shall have given a bond for costs." It is a disability imposed on him, and effectually precludes his right to sue until the bond be given; and the disability will not be removed although he sues for the use of a resident.

In all actions before justices of the peace on office bonds for the use of any person, qui tam actions, or actions on any penal statute, security for costs shall also be filed before the commencement of the suit, the same as in case of non-residents, and the same form of bond may be used as in case of non-residents.

(1) 1 Scam. 193.

2

(2) 5 Gilm. 559; 12 Ill. 27.

CHAPTER V.

OF THE APPEARANCE OF THE PARTIES.

I. OF APPEARANCE OF PARTIES OF FULL AGE.

II. OF APPEARANCE OF INFANTS.

III. OF DEFAULT OR WANT OF APPEARANCE, AND THE EFFECT

THEREOF.

I. OF APPEARANCE OF PARTIES OF FULL AGE.

In all courts plaintiffs have the liberty of prosecuting, and defendants have the privilege of defending in their own proper person,1 except infants, however, and corporations aggregate. The former must appear by guardian or next friend, and the latter by attorney.

Appearance is the presence of the parties in court upon return of the process, and although the party appear by attorney, yet in contemplation of law, the party himself is presumed to be present.*

In justices' court, it does not follow that the attorney should be a licensed attorney at law, but it may be any person whom the party thinks proper to select, to aid him in prosecuting or defending his suit.

The authority to appear and act as attorney may be either written or by parol, and a mere verbal request for that purpose is sufficient authority to appear and manage the cause, though not to release the interest of a witness.5

It is held that where an attorney commences an action in the name of another, or appears for another, the court will presume that he has authority to do so until the contrary is shown; and if such suit is instituted, or appearance entered without legal authority, the remedy is by motion to the court founded on evidence, to show the abuse (in act

(1) Rev. Stat. 75, Sec. 12. (5) 11 Johns. 464.

(2) Rev. Stat. 267.

(3) Tidd 63; 1 Chit. Pl. 585.

(4) 1 Bouv. L. D. 114.

ing without such authority) of process of the court, or irregular act of the attorney in entering such appearance.1

A married woman when sued without her husband, must appear in person, but where the husband and wife sue, or are sued, the husband may retain an attorney for them both.2

3

An idiot must likewise appear in person, and any one may be admitted to sue or defend for him, but a lunatic must appear by guardian, if within age. See Rev. Stat. 277, Sec. 5, which provides that conservators may sue and be sued in every instance as the representatives of the lunatic.

II. OF APPEARANCE OF INFANTS.

The

An infant or minor is every person under twenty-one years. term minor is synonymous with that of infant. The terms major and minor are more particularly used in the civil law. The common law terms are adult and infant. An infant cannot appear by attorney, he must therefore appear by guardian or next friend.

5

Rev. Stat. 267, Sec. 13. "Minors may bring suits in all cases whatever, by any person that they may select as their next friend; and the person so selected shall file bond with the clerk of the circuit court, or justice of the peace before whom the suit may be brought, acknowledging himself bound for all the costs that may accrue and legally devolve upon such minor. And after bond shall have been so filed, said suit shall progress to final judgment and execution, as in other cases."

Form of Bond for Costs by next friend in suit by minor.

STATE OF ILLINOIS, In Justice's Court,

Lake COUNTY,

Before E. S. Ingalls, Esq., J. P.

I, E. F., do hereby acknowledge myself bound for all the costs that

may accrue and legally devolve upon the said A. B. in the above entitled

If an infant plaintiff appear and prosecute a suit in person, or by attorney, the defendant can take advantage of it only by moving to set aside the proceedings for irregularity, or by pleading in abatement. If the defendant in such a case plead in chief or in bar of the action, he admits the due appearance of the plaintiff and cannot take advantage of it afterwards. It is not a ground of non-suit at the trial.1

In a suit against an infant, the plaintiff should see that a guardian is appointed for the defendant, for if no such appointment should be made, a judgment against the defendant would be erroneous. The guardian may be nominated by the infant, and should he fail to do so, the court will appoint such person as may be thought proper, which guardian should be a real person.3

III. OF DEFAULT OR WANT OF APPEARANCE, AND THE EFFECT THEREOF.

Rev. Stat. 318, Sec. 23. “If the defendant shall not appear at the time of trial, after giving bail as aforesaid, or after being served with a summons, as described in the twenty-first section of this chapter, and no sufficient reason be assigned to the justice why he or she does not appear, then the justice shall proceed to hear and determine the cause, in the absence of said defendant, but shall not give judgment in favor of the plaintiff, unless the said plaintiff shall fully prove his demand in the same manner as if the defendant had been present and denied the

same.

"SEC. 24. If the plaintiff or his agent shall not appear at the time appointed for the trial aforesaid, and no sufficient reason shall be assigned to the justice why such plaintiff or his agent does not appear, the justice shall dismiss the suit, and the plaintiff shall pay the costs, unless the defendant shall consent that such suit shall be continued to another day, in which case the same proceedings shall take place at the second day, so fixed for the trial as above provided; but this section shall not require the dismissal of a suit on a note placed in the hands of a justice for collection."

The justice should always allow a reasonable time for the appearance of the parties after the hour appointed in the process or fixed, on continuance, for trial. In some States this is regulated by statute. In the

(1) 7 Johns. 373.

(2) 8 Johns. 418; 2 Cowen, 430.

(3) 2 Cowen, 430.