So

ably more than the amount already recovered against them. far as the difference between the charters is involved, in this view of the case, the result is a mere matter of figures on written evidence, and nothing on that point will be left for the jury. may, therefore, without assuming any facts which the jury ought to pass upon, decide the question of amounts, and let the judg ment stand: Emery v. Owings, 6 Gill, 191; Roloson v. Carson, 8 Md. 226; Duvall v. Farmers' Bank, 9 Gill & J. 31, 51.

Judgment affirmed.

ERRONEOUS INSTRUCTIONS ARE NOT CURED BY CORRECT ACCOMPANYING ONES: Hickman v. Griffin, 34 Am. Dec. 124.

ERRORS NOT PREJUDICIAL ARE NO GROUNDS FOR REVERSAL: Rockhill v. Spraggs, 68 Am. Dec. 607; Lucas v. New Bedford etc. R. R. Co., 66 Id. 406; Saltonstall v. Riley, 65 Id. 334; Western Stage Co. v. Walker, Id. 789.

ERRONEOUS JUDGMENT AGAINST PLAINTIFF WILL NOT BE REVERSED when the court can see from the whole record that upon a second trial he cannot amend the apparent defects; otherwise if he can: Crocker v. Mann, 26 Am Dec. 684.

PETERS v. LEAGUE.

[13 MARYLAND, 58.]

JUDGMENT OF CONDEMNATION OF ATTACHED PROPERTY WILL NOT BE ENJOINED on the ground of surprise, where the process of attachment was in fact served on a party, and he might have made all proper defenses. VALIDITY OF JUDGMENT CANNOT BE COLLATERALLY INQUIRED INTO in a proceeding to enjoin a judgment of condemnation of property attached under such judgment.

SERVICE OF PROCESS ON PRIVILEGED PERSON is not valid; it is treated as an irregularity, which may be waived.

EQUITY WILL NOT ENJOIN JUDGMENT OF CONDEMNATION of attached property on the ground that the person upon whom the attachment was served was privileged from service on account of being at the time engaged in the discharge of his duties as a member of one of the councils of Baltimore.

PRIVILEGE IN RESPECT TO PLACE of service of attachment process does not avoid it, as where it was served on a member of one of the councils of Baltimore in the council-chamber.

BILL for an injunction, alleging that the defendant, having obtained a judgment against one Luke League, caused an attachment to be issued, which was served on the complainant as garnishee; that a judgment of condemnation was rendered without complainant's knowledge, and a fi. fa. was issued and levied on his property. The bill further alleged that the attachment was

never served on complainant, and that he had no notice thereof; that if he had had notice he could have shown that he had never had any credits of League in his possession; that complainant was a member of the city council of Baltimore; that during one of its sessions, while he was busy in discharging his duties as such, and about to take part in debate, the constable approached him and said that he had a writ for him, whereupon the complainant replied that that was no place to serve it, and directed him to his place of business; that the constable then left the place without giving him any idea of the purport of the writ; that he expected the constable would call at his place of business and serve the writ, but that he never called, and never gave the complainant any idea as to its contents or nature; that he remained in ignorance thereof and of the proceedings thereunder until after the judgment of condemnation. The injunc tion was issued and testimony was taken. Jeffers, the constable, testified that he received the attachment with directions to serve it on the complainant; that he called at his place of business, and he not being in, his clerk directed him to the council-chamber; that he went there and found the complainant, told him the object of his visit, and handed him the attachment; that the latter read it, made a note of the return day, and said he would attend to it; witness then called the attention of two others to it, and returned the attachment as served in their presence. The court dissolved the injunction, and the complainant appealed.

T. Y. Walsh, for the appellant.

L. F. Barry, contra.

By Court, TUCK, J. The evidence shows that the process of attachment was in fact served on the appellant; there is herefore no jurisdiction for enjoining the execution on the ground of surprise in obtaining the judgment of condemnation. IIe might have made all proper defenses 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 service of the attachment; and especially while in the actual discharge of

we

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, the 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 are informed, where equity has interfered by injunction. In Prentis v. Commonwealth, 5 Rand. 697 [16 Am. Dec. 782], when 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 it 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 to be abated or suspended. The proof of the facts

upon which it rests are easy of attainment, because they are few, and may be adduced, as well in the absence as in the presence of the party." We consider this decision altogether consistent with the authorities upon the subject.

an at

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 tachment, with 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 Bla. Com. 289; Sewell on Sheriffs, 133, 46 Law Lib.; 1 Sell. Pr. 58; Fortnam v. Rokeby, 4 Taunt. 668; Bouv. Bac. Abr. tit. Privilege, c. 5; 1 Tidd's Pr. Ch. 6, 136, 217; Macnamara on Nullities, 6, 64; Bartlett v. Hebbes, 5 T. R. 686. Decree affirmed, with costs.

GARNISHEE, RIGHT OF, TO IMPEACH JUDGMENT IN ATTACHMENT against the defendant: See Pierce v. Carleton, 54 Am. Dec. 405. A garnishee cannot reverse or avoid a judgment on account of mere errors or irregularities in the

proceedings in the principal action: Earl v. Matheney, 60 Ind. 205. The fact that the garnishee had a good defense, or was clothed with a privilege sufficient to protect him from liability to the attaching creditors, cannot be inquired into for the purpose of setting aside the judgment, or releasing him from its proper legal effect: Groome v. Lewis, 23 Md. 151, both citing the principal case. Peters v. League, was also referred to on the point that the fact that a garnishee was ignorant that unless he appeared and made a defense during the term the judgment would become absolute, was no ground for striking out such judgment: Friedenrech v. Moore, 24 Id. 308; and Post v. Bowen, 35 Id. 236.

VACATING JUDGMENT FOR SURPRISE: See the note to Burnham v. Hays, 58 Am. Dec. 397, 398.

WANT OF SERVICE AS GROUND OF EQUITABLE BELIEF against judgment: Bee Crafts v. Dexter, 42 Am. Deo. 666.

ANACOSTA TRIBE No. 12, I. O. R. M., v. MURBACH.

[13 MARYLAND, 91.]

RIGHT OF BENEFICIAL ASSOCIATIONS TO MANAGE THEIR OWN AFFAIRS, and to control their members, is expressly given by statute.

DECISION AGAINST MEMBER OF PRIVATE CORPORATION BY TRIBUNAL OF

SOCIETY provided by its by-law, in a suit for sick benefits, is conclusive against him, and the court of common pleas has no jurisdiction of a suit thereafter brought for such benefits.

ASSUMPSIT to recover certain sick benefits, to which the plaintiff claims to be entitled. The opinion states the case. The defendant prayed two instructions: 1. That the court has no jurisdiction in the matter, it having been decided by a competent tribunal of the society, provided for by and according to its charter of incorporation, by-laws, etc., and that this decision. was final; 2. That the plaintiff, having been expelled from the society, was not entitled to maintain this action. These instruotions were refused. Verdict and judgment for plaintiff.

fendant appealed.

J. C. Boyd and C. H. Pitts, for the appellant.

E. E. McLane, contra.

De. .

By Court, TUCK, J. This record shows that the appellant was incorporated under the act of 1852, c. 231, and is subject to the jurisdiction of the grand council of Improved Order of Red Men; that the appellee became a member of the tribe in October, 1849, and so continued until July, 1854, having paid his dues, when he was reported as sick, and claimed benefits under a bylaw, which the tribe refused to allow; and that he was sick

AM. DEO. VOL LXXI-40

during the time for which he claimed the benefits. This was in substance the case made by the plaintiff below, on which state of facts he sought to recover his weekly allowance during his sickness.

The defendant below read in evidence portions of the general laws for the government of the tribe under the jurisdiction of the grand council. The first section of the nineteenth article provides that members may receive benefits according to the by-laws; but should the sickness of the applicant be "supposed to have originated from immoral conduct or conduct or usages unbecoming an Improved Red Man, it shall be withheld until decided by the tribe." Article 22 provides for suspension or expulsion, as the tribe may determine in the cases specified, and also imposes fines in certain cases. The other regulations offered in evidence relate to the course of proceedings for the trial of members, and authorize an appeal to the grand council, "whose decision shall be final." The defendant also proved that proceedings were had upon certain charges made against the plaintiff, which resulted in his expulsion, and on appeal to the grand council the sentence was affirmed. The verdict and judgment were for the plaintiff, the court having refused the defendant's prayers, to the effect that the plaintiff was concluded by the action of the tribe and grand council.

The counsel having waived all objection to the frame of the prayers, and to the admissibility of the evidence, the only point before us relates to the jurisdiction of the court of common pleas, where the cause was tried.

Apart from the common-law right of private corporations to manage their own affairs, and to control their members by bylaws, the power is expressly given by the act of 1852, c. 231, "subject, however, to the constitution and laws of the United States and of the state, and to the instrument on which the corporation may be established:" Angell & Ames on Corp. 323, 360; Grant on Corp. 77, 80 Law Lib. We do not perceive that the regulations, offered in evidence are repugnant to the proviso in the act, and as the appellee, by becoming a member, assented to be governed by the tribe and council, according to the regulations; it follows that he was bound by their application and construction in his own case. It is provided that the tribe shall determine matters of this kind, and the decision, on appeal, made final. These are private beneficial institutions, operating on the members only, who, for reasons of policy and convenience affecting their welfare, and perhaps their existence,