| Md. | Feb 8, 1859
delivered the opinion of this court.
The evidencie shows, that the process of attachment was, in fact, served on the appellant; there is therefore no jurisdiction for enjoining the execution, on the ground of surprise, in obtaining the judgment of condemnation. He might have made ail proper defences before the justice of the peace.
We cannot, on this appeal, inquire into the authority of the justice who issued the warrant against Luke League, on which the judgment was rendered against him; and which is said to have been the basis of the attachment laid in the hands of the appellant. The validity of that judgment cannot be assailed collaterally in the present proceeding.
It-is supposed, that the appellant was privileged from the sovvice of the attachment; and especially while in the actual discharge of his duties as a member of one of the councils of Baltimore. If this be admitted, it will not follow that the party can obtain relief in the way proposed. Service of process on a privileged person is not void; it is treated as an irregularity, even in cases where, under the process, a party may be held to bail. It may be waived by a trial or confession of judgment; and this shows that it does not avoid the proceedings, for what is a nullity cannot be cured. There are many cases in which the exemption has been claimed by plea, or motion, in the particular case; but none, as far as we are informed, where equity has interfered by injunction. In Prentis vs. Commonwealth, 6 Rand., 697, where the subject was examined with care, on the application' of a member of the Legislature, it is said: “We are satisfied that the courts may not, ex officio, take notice of the existence of the privilege. It results, from its nature and character, that if may be waived, and therefore ought to be claimed whenever relied on.The judicial history of the question does not furnish an example of the allowance of the privilege, but upon plea, or upon motion, tendered or made, at the period proper for the consideration thereof by the court, whose proceedings are sought
It is worthy of remark, that Peers and members of Parliament were liable at common law to be sued though they could not be arrested on writs of capias. Here the process was an attachment, with a summons to the party as garnishee; therefore the supposed analogy between members of the Baltimore City Councils and of Parliament would not aid the appellant:
If there was privilege in respect to the place, the service was not thereby avoided, whatever penalties the officer might have incurred by his alleged contempt, if the body had thought proper to vindicate its dignity against such intrusion. See 3 Bl. Com., 289. Sewell on Shff's., 133, (46 Law Lib.) 1 Sell. Pr., 58. Fortnam vs. Rokeby, 4 Taunt., 668. Bouv. Bac. Abr. Privilege, C. 5. 1 Tidd’s Pr. Ch., 6, 136, 217. Macnamara on Nullities, 6, 64. Bartlett vs. Hebbes, 5 Term Rep., 686.
Decree affirmed, with costs.