
    M’Pherson v. Nesmith & Wife.
    July Term, 1846,
    Lewisburg.
    1 Members of Assembly — Process against — Privilege.— The act 1 Rev. Code, ch. 51, § 31, p. 163, does not privilege members of the General Assembly, during the period therein prescribed, from the issuing process against them; but for that period it privileges them from the service of such process upon their persons, servants or estate.
    
    2. Same — Same—Same—Process Issued before Privilege Begins — Effect.—If process has issued before the commencement of the privilege, all further proceedings thereon is to be suspended 'until the termination of the privilege, without abatement or discontinuance.
    3. Same — Same—Same—Privilege Violated — Redress.— If such privilege is violated, the exercise by the party, of his right to claim redress, is not limited to the period of its existence.
    4. Same — Same—Same—Same—Same.—where a suit has been brought against a member of the General Assembly, and the process has been served upon him, and an office judgment has been entered up against him at the rules, whilst his privilege existed, and confirmed; he may, at the next term of the Court, though his privilege has then ceased, upon motion, have all the proceedings subsequent to the issue of the process set aside, and the cause remanded to the rules.
    On the 25th day of November 1844, Ne-smith & wife sued out of the clerk’s office of the Circuit Superior Court *of Greenbrier county a writ of capias ad respondendum, in an action of debt, against Joel M’Pherson and John H. Copeland, which was served upon them on the same day. At the March rules in 1845, the declaration was filed and the common order entered. And at the April rules, the office judgment was confirmed against both the defendants.
    When the process in this case was issued and served, M’Pherson was privileged from arrest, as a member of the General Assembty of Virginia, and his privilege continued until after the office judgment was confirmed; but terminated before the next term of the Court.
    When the cause was called at the May term of the Court, M’Pherson moved the Court to set aside the judgment which had been entered against him at rules in the clerk’s office, and amend the rules; but the Court overruled the motion, and gave judgment for the plaintiffs. And M’Pherson paving excepted to the opinion of the Court overruling his motion, he applied to this Court for a supersedeas, which was allowed.
    Price, for the appellant.
    By the act, Sup. Rev. Code, ch. 88, § 34, p. 112, the appellant was privileged from arrest at the time the process in this case was issued and served upon him; and the last clause of that act directs that whilst the privilege continues, “process in which they are parties shall be suspended without abatement or discontinuance.” The motion made by the appellant in the Court below was not to dismiss the suit, but simply to send the case back to the rules. *The act, 1 Rev. Code, ch. 128, § 77, p. 508, gives the Court authority to correct the proceedings at rules; and there can, therefore, be no doubt that if these proceedings were erroneous, the Court might and should have corrected them. And there can be as little doubt that the" proceedings were in direct violation of the statute. It will be said that the privilege should have been pleaded. But if such a plea had been filed at rules, and issue had been taken upon it, it would have, been an immaterial issue, because the plaintiffs had a right to issue their writ, though they were forbid to serve it.
    It is well settled that a privilege may be made available by motion. King v. Coit, 4 Day’s R. 129; Briscoe v. Earl of Egremont, 3 Mau. & Sel. R. 88; Bolton v. Martin, 1 Dali. R. 296; Miles v. M’Cullough, 1 Binn. R. 77; Holiday & ais. v. Pitt, 2 Strange’s R. 985. In these cases the motion was to dismiss the suit; and if this may be done on motion, the argument is a fortiori in favour of the sufficiency of that mode of proceeding, where it is merely to suspend the proceedings. In the case of Steele v. Boyd, 6 Leigh 547, the Court upon motion, relieved a surety in a forthcoming bond, who had been released by the dealings of the plaintiff with the principal.
    Smith, for the appellees.
    The act obviously contemplates two classes of cases; the first, where process has been served before the commencement of the privilege; the second, where the process is served after the privilege has commenced. This case falls within the last class.
    It is true, that the Courts are bound to notice all general laws, but they are not bound to notice a legislative privilege, or to know who is or is not a member of the General Assembly. This fact must therefore be made known to them by plea; and as the privilege is personal it may be waived; and the Court cannot be required *to set up a' defence for a party which he does not choose to make for himself. Prentis’ Case, 5 Rand. 697; Geyer’s lessee v. Irwin, 4 Dali. R. 107.
    The second clause in the act, which is relied on by the counsel for the appellant, is not applicable to this case; the writ having been served after the privilege had commenced. But as to the cases coming within this clause of the act, although the defendant could not plead in abatement, a plea in suspension of the proceedings would have been proper. For such a plea the Court is referred to Stephens on PI. 46; 2 Tuck. Comm. 258; 1 Rob. Pr. 161-2. It results from the nature of this defence, that it must be pleaded at the earliest moment ; and cannot be used to set aside an office judgment. It is not a plea to do away what is done, but to suspend farther proceedings. And in this case the privilege had ceased before the motion was made.
    BALDWIN, L,
    delivered the opinion of the Court.
    The Court is of opinion, that by the 31st section of the general election law, (Rev. Code, p. 163,) it was the intention of the Legislature not to exempt and privilege members of the General Assembly, during the period therein prescribed, from the issuing of process against them ; but for that period to exempt and privilege them from the service or levy of such process upon their persons, servants and estates; and, where such process had been commenced before the commencement of such privilege, to suspend, without abatement or discontinuance, all further proceedings thereupon during the term of such exemption and privilege. A construction of the statute which would prohibit the institution as well as the service or levy of the process, would afford no important protection to members of the Legislature; and might, under circumstances, prove injurious to others, by defeating altogether the recovery of their demands.
    *If however the privilege conferred by the statute be violated, the -exercise by the party of his right to claim redress is. not limited to the period during which.the privilege exists. Thus if a member be arrested and imprisoned, or an execution levied upon his property during his attendance upon the Legislature, or within the time allowed for his going to or returning therefrom, he may obtain the release, of his person or property, at a subsequent period, by the order of the proper Court, on motion or other proper proceeding. So, if upon process pending against him at the commencement of his privilege, or instituted during its continuance, the proceedings be not suspended, but prosecuted without his consent, he has a right, though after the termination of the privilege, to have them set aside as irregular and illegal. But, in either case, he may lose the advantage of his privilege, by not asserting it in due time, or in a proper manner.
    In the present case, it appears that the defendant in the action was privileged as a member of the Legislature, at the-time--of the issuing of the writ, and the service thereof upon him, and continued so.privileged until after the office judgment- was rendered, but not at the next ensuing term, when he moved the Court to correct the proceedings in the office, and remand rthe cause to the rules. . - -
    It cannot be doubted that the arrest or service of the process, and the consequent proceedings in the office, were illegal; and that the defendant had a right to object to them as a violation of his privilege; and the only question is, whether he has done so at a proper time and in a proper manner.
    The defendant could at no- timé'have pleaded his privilege in abatement of the writ, because the protection given by the statute is not against being sued, but against being arrested or served with process. He was not in actual custody,- bail-not having been required, and of ^course a motion to discharge him from confinement would not have been appropriate. He had no defence either in bar or abatement of the action; and if he had pleaded his privilege at the rules, the substance of his plea would have been a mere objection to the regularity of the proceedings there: to wit, that he had been unlawfully arrested, and that the clerk could not lawfully make that arrest the foundation of an office judgment. Nor was it competent for the clerk to vacate the service of the writ, and award new process in the action. But the Court had full power over the whole subject, being authorized by the 77th section of the act regulating proceedings ■ in civil suits, 1 Rev. Code, p. 508, to,control and correct, on motion, all proceedings in the office during the preceding vacation, and make any proper order concerning the same: and the Court erred in refusing to exercise that power, as stated in the bill of exceptions.
    It is therefore considered by the Court, that the judgment of the Circuit Court is erroneous, and that the same be reversed and annulled; and that the plaintiff in error recover against the defendants in error his costs by him expended in the prosecution of his writ of error and supersedeas here. And this Court proceeding to render such judgment as the Circuit Court ought to have rendered, it is further considered, that the proceedings in the office subsequent to the issuing of the process be set aside, and the service of the writ vacated and annulled; and the cause is remanded to the rules, with directions to the clerk to issue new process in like manner as if the former writ had never been executed, and thereafter to proceed de novo in such manner as-the law directs.
    
      
      Members of Assembly — Privilege of. — See Prentis v. Com., 5 Rand. 697, and foot-note to Turnbull v. Thompson, 27 Gratt. 306.
    
    
      
      The act says; “All and every member and members of the General Assembly are, and ought to be, and forever shall be, in their persons, servants and estates, both real and personal, free, exempt and privileged from all arrests, attachments, executions and all other process whatsoever, save only for treason, felony or breach of the peace, during his or their attendance upon the General Assembly, and one day before and after for every twenty miles they must necessarily travel to and from home; and in the mean time, process, in which they are parties, shall be suspended without abatement or discontinuance.”
    
     