in dismissing the appeal for want of a recognizance, for although the law allows the appellant to come into court before the mo tion to dismiss for want of, or for a defective recognizance is determined, and enter into such recognizance as he ought to have entered into before the allowance of the appeal, yet in case the party only offered to come into court and do it, such an offer is not a compliance with the requisitions of the law. There is a great difference between the offer to come into court to do an act, and the actual coming in and doing it. The time allowed by law, is before the motion to dismiss is determined, and there is no complaint that the court urged the decision with improper haste. The court is therefore unanimously of opinion, that the decision of the district court be affirmed with costs.

T. W. SUTHERLAND, for pltff. in error.

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After a special demurrer has been sustained to a plea in abatement, it is not error to allow the defendant to plead over.

After leave is given to the defendant to plead over, it is not error to allow him to plead, in proper form, the same matter in abatement embraced in the plea which had been held bad on special demurrer for informality.

The privilege from arrest secured to members of the legislative assembly, not only exempts their persons from actual arrest, but also exempts them from suit or any civil process, which may interfere with their public duties, during the continuance of their privilege. It is the privilege of the people as well as of the individual members, and of the house.

This was an action of assumpsit, commenced by summons, and brought by Anderson against Rountree, in the Dane district court. Rountree was a member of the legislative council, and process was served upon him on the next day after the adjournment of the legislative assembly. At the return term the defendant pleaded his privilege in abatement of the suit, to which plea the plaintiff demurred specially, and the demurrer being sustained on the ground of the informality of the plea, leave was given to the defendant to plead over. The defendant then pleaded, formally, his privilege

in abatement by way of an amended plea; which plea the plaintiff moved the court to reject as a nullity, but the court overruled the motion. The plaintiff then filed a general demurrer to the amended plea; which demurrer the court overruled, and gave judgment for the defendant. To reverse this judgment the plaintiff has prosecuted this writ of error.

Brigham, for the plaintiff in error, contended:

1. That the plea of privilege could not avail the defendant, as the process was a summons; that the word arrest had a techinal meaning, and could be used in no other sense, and referred to the Statutes of Wisconsin, page 35, and to the remedy provided by statute for a breach of privilege, page 157. If a privileged person should be arrested he would be discharged, but the suit would continue. Bacon's Ab. title, Privilege; U. S. Const. Art. I. sec. 6. Chitty's Gen. Prac. vol. 3, pages 357-S-9; Tidd's Prac. vol. 1, pages 219-221; 1 Johnson's Cases, page 415, and the case of Doty vs. Strong, decided in this court in 1840.

2. That whether the matter pleaded be sufficient or not, it was not pleaded at the proper time or in due form; that the defendant cannot file a second or amended plea in abatement after judgment of respondeas ouster. On this point he referred to 1 Chitty's Plead. 457; Bacon's Ab. title, Abatement, letter O; 1 Tidd's Prac. 563-4-5, 640, 641, 638; 6 East's Rep. 583; 1 Vesey's Rep. 202, 203; 6 Maul and Sel. Rep. SS; 5 Mass. Rep. 362; Statutes of Wisconsin, 257, sec. 1 and 38; Gould's Plead. ch. 5, sec. 3, 12; ch. 9, sec. 12, and references.

Catlin, for the defendant, insisted, that there was but one point in the case that required the consideration of the court, and that was the question of privilege under the third error assigned. The other points in the assignment of errors are not well taken, and are not sustained by the record. The statute of amendments clearly gives the court the power to amend the plea and affidavit: see page 257; and the second plea ought not to be treated as a nullity, because it was only an amendment of the first plea.

The privilege of members of the legislative assembly must be construed to exempt them from the service of a summons, as well

as from an arrest under a capias. The technical construction of the word arrest, which has been contended for, does not apply to the word as used in the Statute, giving the privilege. The meaning of the Statute was, not only to exempt members of the legislature from actual arrest under a capias, but to exempt them, during their privilege, from suit, or the service of any civil process, that would in any way interfere with the discharge of their public duties; See the case of Geyer's lessee vs. Irvin, 4 Dallas' Rep. 107; King vs. Coit, 4 Day's cases, 129; 2 Yeats' Rep. 222; 1 Dallas' Rep. 325; 9 Johnson's Rep. 216, and the case of Doty vs. Strong, decided in this court at the July term, 1840.

Judge Miller delivered the following opinion of the court:

The defendant was a member of the legislative council of the territory, from Grant county, and was in Madison attending the same as such member. The council adjourned on the 19th day of February, 1841, and on the next day, a summons was served on said defendant, at Madison, in said county of Dane, before he left for his home. Said writ was returnable to the next term of the district court for said county, to be holden on the second Monday of May in said year. At the return of the writ, the defendant filed a plea, claiming to be discharged from said suit, on the ground of his privilege as such member, to which the plaintiff filed a demurrer, which was agreed by the parties to be considered a special demurrer, which the court entertained, believing the plea filed to be informal, when the court made this entry: that the demurrer be sustained, and the defendant have leave to plead over. The defendant then filed another plea, averring his said privilege, which the plaintiff moved the court to strike off as a nullity; and the court overruling said motion, the plaintiff filed a general demurrer to said plea, and issue being joined on the same, the court sustained the said plea, and dismissed the defendant from the suit. The questions raised upon the record for disposition by this court

are,

1. Did the court err in permitting the second plea to be filed, or in not sustaining the motion to strike it off as a nullity?

2. Did the court err in sustaining the defendant's plea of privilege?

If the defendant had pursued the usual practice of the present day, in filing a motion to be discharged from the suit, with his reasons therefor, under oath, the difficulties of the first point would not have occurred, and counsel would have saved themselves and the court some trouble. But we do not see that there was error in the court allowing the second plea to be filed for the furtherance of justice, when the first one was voidable for informality. The second one was the only one on which an issue could be joined, or the rights of the parties could be tried. Nor was there any delay or injury to either party by the proceeding. There was no formal judgment against the defendant on the first plea. The court will not reverse the judgment on this point.

The second point is the important question in the cause.

Privilege is an exemption from some hurden or attendance, with which certain persons are indulged, from a supposition of law, that the stations they fill, or the offices they are engaged in, are such as require all their time and care, and that therefore, without this indulgence, it would be impracticable to execute such offices to that advantage which the public good requires. 5 Bacon's Ab. title, Privilege. Privileges are said to be very ancient, and are doubtless of common law origin. The privilege from arrest of an attorney, a witness, or a suitor in court, is a privilege of the court for the due administration of justice, and is to be determined by the court. The privilege from arrest of members of legislative bodies during the session, and for a reasonable time to go to and return from the same, is a privilege of the people, as well as of the representative, and of the body of which he is a member; and is properly to be judged and determined by the house to which the member belongs, unless in cases of suits in courts against members, when it becomes a proper and necessary subject for the consideration of the courts.

In Bacon's Abridgement, vol. 5, page 618, title, Privilege, it is stated, that this privilege extends to arrests on judicial as well as on mesne process, and to the service of a summons as well as to an arrest. The rule is laid down as general in Tidd's Practice, vol. 1, p. 237, that where the defendant is clearly entitled to privilege, as the arrest is irregular and unlawful, the court will discharge him upon motion, and not put him to the necessity of suing

out a writ of privilege or of filing common bail. Dunlap's Prac. vol. 1, page 92, says: that this immunity, privilege from arrest, whether it be perpetual, temporary, or local, generally amounts, during its continuance, to a total privilege from suit. Thus has been the English practice on this subject, and these were the books of reference in our courts at the time of the formation of this government, and are worthy of respect at this day.

Members of the British parliament were exempted from arrest and the service of any process out of the courts of law during the session, and for such a time thereafter, that it amounted to a total exemption from suit. The statutes of 12 and 13 William the 3d, and 6 George the 3d, allowed them to be sued by summons, or distress infinite, to compel a common appearance, but even then, they were entitled to a reasonable time, redeundo. The case of Col. Pitt, 2 Strange 990, determined the privilege of members of parliament, after the passage of the first mentioned act. He was arrested before his time of privilege had expired after an adjournment. The judges discharged him entirely, althought at first they thought he only should be discharged on common bail. From this it appears that members of the British parliament were, by the common law, privileged from suit, during the session and for a time afterwards.

The constitution of the United States exempts members of congress from arrest upon civil process, during the session of congress, and for a reasonable time, in going to and returning from the same. This constitution was adopted in September, 1787, with a full knowledge of the legal understanding of the privilege from ar

rest.

There has not yet occured one instance where congress has put its own construction on this item of privilege; but from the American authorities hereafter referred to, there is little doubt but it includes an exemption from the service of a summons. In 3 Story's commentaries on the constitution, it is stated, that this privilege from arrest "is conceded by law, to the humblest suitor and witness in a court of justice, and it would be strange indeed, if it were denied to the highest functionaries of the state, in the discharge of their public duties. It belongs to congress in common with all other legislative bodies which exist, or have existed in America, since its first settlement, under every variety of govern