
    In the matter of William Livingston.
    A judge is not liable to arrest by process issuing out of his own court, but must be proceeded against by bill. Whether after bail is put in,the arrest and proceedings may be set aside on motion for irregularity, musí depend on the practice of the court. This court will noV,interfere with the proceedings of an inferior court in this respect*
    CRARY moved for a rule against the judges and assistant justices of the court of common pleas of the county of Washington, to show cause why a mandamus should not issue, directing them to proceed in the above cause.
    It appeared that the defendant is one of the judges of the court of common pleas of Washington county, and was arrested on a capias ad respondendum, at the suit of M-Geoch, on the first day of the last March term of the court, when he was informed by the sheriff that his attendance was necessary in court.
    A motion was made in the court below to quash the writ for irregularity, which motion was grounded on ,an affidavit of Livingston, that he was one of the judges, &c. and a claim of privilege to be free from arrest; and the court below set aside the capias and all subsequent proceedings, for irregularity.
    
      Crary
    
    contended that the privilege of the defendant ought to have been pleaded in abatement. A person privileged is discharged on motion only, when arrested in facie curia. He must plead his privilege at a proper time and in a proper manner. If he puts in bail, it is a waiver of privilege. He cited 2 Black. Rep. 1085. Comyn's Dig. tit. Privilege. 2 Mod. 182.
    Skinner, contra,
    cited 3 Lev. 343. 2 Wils. 228.
   Per Curiam.

A judge is not liable to arrest, by process issuing out of his own court. He is to be proceeded against by bill. In this case the defendant put in bail, and then moved to be discharged, and the court below set aside the whole proceeding as irregular. In some cases the party privileged is discharged altogether from. arresti as being deemed irregular. (Sir. 985.) In other cases, the party is relieved from the arrest on. filing common bail. This will depend upon the rules and practice of the court. There is nothing in this case that calls for our interference.

Motion denied.-  