
    *Johnson’s Ex’rs v. Johnson.
    [November, 1785.]
    Settled Accounts — Evidence to Contravene, — Begu-larly, anterior debits ought not to be received in contravention of a settled account.
    Same — Same.—-A deed of indemnity, of date anterior to the settlement, is not proper evidence in such cáse.
    Member of Assembly — Privilege—Waiver.—A member of assembly may waive bis privilege, and let the canse proceed to trial.
    Thomas Johnson brought indebitatus assumpsit, ¿gainst Thomas and William Johnson, executors of Richard Johnson, deceased. The declaration contained three counts, 1. For £ 300. 18. 4. due for goods, wares and merchandizes, sold and delivered by the plaintiff to the defendants’ testator, and for money had and received by him to the plaintiff’s use. 2. A quantum valebat for the same sum and articles. 3. An in-simul computassent, between the plaintiff and the defendants, concerning divers sums of money due from the testator to the plaintiff; upon which the defendants were found in area £ 300. 18. 4. Plea non assumpsit, with leave to give the special matter in evidence.
    Upon the trial of the cause, the defendants filed a bill of exceptions to the court’s opinion, stating, that they “produced in evidence a deed,” which bears date the 11th of June, 1771; is set forth in hasc verba; and purports, that the testator had conveyed his property to the plaintiff to secure payment of a debt of £ 533. 6. 8. sterling, and as an indemnity against suretyships. That the defendants objected “to the submission of the same to the consideration of the jury, alleging that the action was founded on a letter, dated December 9th, 1772, and a settlement made, between the plaintiff and the defendant William, on the 24th day of August, in the year of our Lord, one thousand seven hundred and seventy-three, in the following words, ‘Dr. uncle: I am extremely sorry to hear of your estate being under execution for want of the money due you from my father; and must beg leave to inform that as soon as it lays in my power to collect the discounts that ought to appear ^against your claim, that I shall immediately call on you for a settlement, and contrive ways and means to replace your principal, as well as interest. You cannot be insensible of the perplexity and confusion attending the affairs of a deceased gentleman, who was much engaged in the world; and, of course, of the uncertainty and danger of loss that would attend a precipitate settlement of his affairs, or part of them. Therefore hope you’l be kind enough to give me such length of time as will enable me to do that justice to the estate which is its right. I have not, as yet, had an opportunity to know of Mr. R. Chamberlayne, whether he paid your order to my father, nor of enquiring of Baine or Ross. Col. Burwell saj's that the balance on his books against you is justly due, the amount I told you when up. Mr. Richard Chapman told my brother Richard, that he paid you, on account of my father, during his sherifalty, forty pounds. X shall esteem it as a particular favour if you will know of Mr. Chriswood, your neighbour, whether I am to look to him, or to you, for the ¿ 20. my father let him have, and write me by the first opportunity what he says. I am, dear uncle, your most obedient nephew, W. Johnson. — New Castle, December 9th, 1772.' — P. S. Dukens, the man you sent with the beaves, borrowed 20s. of me, on the strength of your order on my uncle William Johnson, or that sum. If he does not produce to you a discharge from me for it, you must charge him with it, his conduct, in returning, I don’t like. W. J.— To Maj. Thomas Johnson, in Douisa.’— (The settlement referred to, is an account in the hand writing of the defendant, William; is dated on the 24th of August, 1773; and debits the plaintiff to the testator with ¿257. 0. 8. as sundries per account; and credits him with various sums amounting to.¿543. 12. 6., leaving a balance in favour of the plaintiff of ¿286. 11. 10., and one year’s interest ¿14. 6. 6., amounting together to ¿300. 18. 4.)- — and that the said deed ought not to be permitted to go to the jury in opposition to the said settlement: whereupon the court gave it as their opinion, that *the said deed should not go in evidence to the jury: To which opinion the defendants excepted, &c.” There is nothing in the record to shew, that the plaintiff ever admitted the account to be correct, other than the commencement of this suit: or that there was no other evidence, than that above mentioned, in the cause. Verdict and judgment for the plaintiff for ¿467. 12. 9.; to which the defendants obtained a writ of error from this court.
    Randolph, attorney general,
    contended that the deed ought to have been received. For the whole evidence is not stated in the bill of exceptions; and the presumption is, that it was introduced for the purpose of inducement to, or explanation of, credits claimed by the defendant, as nothing is said to. the contrary. That there was other evidence, is manifest, as. otherwise the plaintiff could not have supported either count in his declaration ; for there was no buying and selling shewn ; and much less any proof of an accounting, as the letter establishes, that all was unadjusted in 1772, and the account filed is nothing but the defendants’ statement, without the slightest testimony that it was ever admitted by the plaintiff. Of course, it was not such an accounting as was necessary to bar anterior debits.
    Duval, contra.
    The ' court did right in refusing to let the deed go to the jury. For the settlement shut the door to all enquiry into preceding debits, and was a tacit admission, that the parties had no further charges to make. It is in vain to endeavour to confine the motive for the introduction of it to inducement and explanation; because the bill of exceptions states, that the submission of the deed to the jury was excepted to, upon the ground, that the action was founded on the letter and settlement, without shewing that it was, in any manner, intended to sustain subsequent discounts; of which there is not the slightest proof: and therefore the appellant is reduced to the single enquiry, whether a deed, which, upon the face of it was for other and indefinite purposes, *and of an elder date to the settlement could be offered as a'discount to it? For. if there was other evidence, which made it proper to use it for the purposes of inducement and explanation, the defendants ought to have inserted it in their bill of exceptions; but having failed to do so, the court must take the record as the find it; which shews no such* feature, in the cause; but submits the dry question, whether the deed was proper evidence in an action upon the settlement? For a settlement it was, as the account was delivered to the plaintiff; never objected to by him; and .the action brought upon it. Both propositions are therefore clearly for the plaintiff, namely, that there was an accounting; and that the deed was not admissible against the settlement.
    
      
      Settled Accounts. — in cases of settled accounts, a court of equity will not generally open the account, but will, at most, only grant leave to surcharge and falsify, except in cases of apparent fraud. Rufiner v. Hewett, 7 W. Va. 585. See Neff v. Wooding, 83 Va. 432, 2 S. E. Rep. 731; Freeland v. Cocke, 3 Munf. 352.
    
    
      
      Member of Assembly — Waiver of Privilege. — The privilege of a member of assembly, cannot be noticed by the courts ex officio. As it may be waived, it must be claimed. And it can only be claimed by plea ; or on motion tendered, or made at the proper period. Thus, if a member of assembly allows a judgment to be rendered against him during the existence of his privilege, and does not seek during the progress of the proceedings, either to abate or suspend them, he will be deemed to have waived his privilege, and he cannot afterwards be allowed the writ of error coram vobis to reverse the judgment. Prentis v. Com., 5 Rand. 697, 16 Am. Dec. 782.
      Same — Same—Effect of Delay. — See also, M’Pherson v. Nesmith, 3 Gratt. 237, in which it was held that, the right of a member of assembly, to claim redress, if his privilege is violated, is not limited to the period of the existence of the privilege.
    
   Of which opinion was the court; and the judgment was, accordingly, affirmed.

Mem.' — Johnson was a member of the assembly at the time the cause was tried; but he waived his privilege, and thereupon the court proceeded.  