Sufficient if Claimed before Return Day. -A motion to set aside the summons on ground of privilege will not be denied on the ground of laches, if made before the time to appear and answer the summons has expired. Lederer v. Adams, 19 Civ. Pro. Rep. (N. Y. Supreme Ct.) 294; Young v. Armstrong, 13 W. N. C. (Pa.) 313.

Delay Not Always Fatal. In Webb v. Taylor, 8 Jur. 39, it was held that an attorney arrested in violation of privilege did not waive his right to be discharged, by delaying his application for twenty-three days, where the situation of the adverse party had not been changed.

And in M'Pherson v. Nesmith, 3 Gratt. (Va.) 227, it was held that the right of a privileged party to claim re dress was not limited to the period of the existence of the privilege.

1. Mackay v. Lewis, 7 Hun (N. Y.) 83: U. S. v. Edme, 9 S. & R. (Pa.) 147; Washburn v. Phelps, 24 Vt. 506; Larned v. Griffin, 12 Fed. Rep. 590.

The giving of a bail bond is so far from waiving the privilege from arrest that the court, when the party is discharged, will order the bond to be delivered up to be canceled. The

defendant is not obliged to apply in person, but the application may be made by his bail or his attorney. Nor must he continue in custody or give up his lawful pursuits and remain sta tionary until the sitting of the court. U. S. v. Edme, 9 S. & R. (Pa.) 147.

New York. In Stewart v. Howard, 15 Barb. (N. Y.) 26, it was held that the giving of bail by a privileged party constituted a waiver of the exemption from arrest. And in Petrie v. Fitzgerald, 1 Daly (N. Y.) 401, it was likewise held that the perfecting of bail by justification of the sureties thereon was a waiver of the privilege. In Farmer v. Robbins, 47 How. Pr. (N. Y. Supreme Ct.) 415 the point in question was not directly involved, but it was said incidentally that the case of Stewart v. Howard, 15 Barb. (N. Y.) 26, could hardly be considered a good authority, having been decided under a provision of the code no longer in force; but Petrie v. Fitzgerald, I Daly (N. Y.) 401, was cited and followed.

But in the later case of Mackay v. Lewis, 7 Hun (N. Y.) 83 it was directly held that the privilege from arrest was not waived by the giving of bail.

Exoneratur on Bail Bond. - Where a privileged party is arrested, the court where the suit is pending at its discretion may allow him to plead his privilege, either against the principal or the bail, and to enter an exoneratur on the bail bond, or discharge the bail on his own motion. When such an exoneratur is entered, or the bail discharged, the proceeding is conclusive upon the parties, and upon all interested. Washburn v. Phelps, 24 Vt. 506.

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voluntarily giving bail and pleading guilty to the information, without claiming his exemption.

1. Stewart v. Howard, 15 Barb. (N. Y.) 26; Gracie v. Palmer, 8 Wheat. (U. S.) 699.

What Constitutes Appearance. - Where a nonresident witness in a circuit court of the United States is served with a summons issuing from a state court, the fact that he thereafter files a petition and bond for the removal of the cause to the federal court does not constitute such an appearance as to result in a waiver of privilege. Atchison v. Morris, 11 Fed. Rep. 582.

The facts that a defendant moves to have a summons dismissed on the ground of privilege, and for that purpose makes and files an affidavit stating the facts relied on to show irregularity, and that his attorneys obtain and serve an order to show cause why the summons should not be dismissed, and ordering the proceedings to be stayed, and extending the defendant's time to answer for twenty days, do not constitute such an appearance in the cause as to amount to a waiver of privilege. Brett v. Brown, 13 Abb. Pr. N. S. (N. Y. Supreme Ct.) 295. See generally as to what constitutes an appearance, article APPEARANCES, vol. 2, p. 588.

2. The defense of privilege is not waived because an answer to the merits is filed with a plea in abatement. Larned v. Griffin, 12 Fed. Rep. 590 [citing Fisher v. Fraprie, 125 Mass. 472; O'Loughlin v. Bird, 128 Mass. 600].

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Being, then, of opinion that the defendant Williams was privileged against service of the summons in this action while attending upon the other action, either in his character of party or in his character of witness, we shall next consider whether he has waived the privilege by anything which he has done in this case. Clearly he has not

waived it by not taking an exception to the order of court sustaining the demurrer to his original answer in which he first set it up, because the petition, the answer, the demurrer, and the order of court sustaining the demurrer were parts of the record proper; and if he had stopped there and suffered judgment by default, he might, if the demurrer were improperly sustained, have reversed the judgment upon writ of error. It is not necessary to except to a ruling upon demurrer in order to have the ruling reviewed on appeal or error. We are equally clear that he did not waive his plea to the jurisdiction by answering over, because in his amended answer he again renewed it, and in such frame of language that the plaintiff saw fit to join issue upon its allegations by his reply. Nor did he waive his plea to the jurisdiction by answering to the merits. Under our Practice Act a defense to the merits may be united with a plea to the jurisdiction, but the court ought to settle the question of jurisdiction before proceeding to try on the merits.' Per Thompson, J., in Christian v. Williams, 35 Mo. App. 297.

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3. Thornton v. American Writing Mach. Co., 83 Ga. 288; Sheehan, etc., Transp. Co. v. Sims, 36 Mo. App. 224; Sebring v. Stryker, 24 Civ. Pro. Rep. (N. Y. County Ct.) 126, 10 Misc. Rep. (N. Y.) 289; Geyer v. Irwin, 4 Dall. (Pa.) 107.

In Sheehan, etc., Transp. Co. v. Sims, 36 Mo. App. 224, a nonresident suitor, arrested while in attendance at court, set up a claim of privilege. The record, however, showed that said party had appeared in the case; had filed a demurrer to the petition on grounds other than jurisdictional; had entered into a stipulation concerning certain substantial steps in the cause; had appealed from a judgment which was rendered against him; had secured a reversal of that judgment; and had,

after this reversal and before filing his answer to the amended petition, given notice to take depositions. It was therefore held that he had waived his privilege, and could not set it up by an amended answer, and that the part of his answer which raised the plea of privilege might be stricken out on motion.

A Summons of Garnishment was served on a nonresident witness, and judgment by default was afterwards entered against him. A year and a half later he moved to set the judgment aside, but it was held that he should have

moved to set aside the service of the summons, or filed a plea in abatement, and his motion to set aside the judgment was refused. Thornton บ. American Writing Mach. Co., 83 Ga. 288.

Cannot Be Set Up Collaterally After Waiver. Where a principal, entitled to privilege from arrest, has waived the same by suffering judgment to pass against him, without protest, the privilege cannot subsequently be set up as a defense to an action against his bail. Fletcher v. Baxter, 2 Aik. (Vt.) 224. Volume XVI.

Fighting Together.

1. People v. Taylor, 96 Mich. 576; Com. v. Barrett, 108 Mass. 302; Seville v. State, 49 Ohio St. 117.

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Indictments Sufficient. Where it was provided by statute that" every person who shall, by previous appointment or arrangement, meet another person and engage in a fight," and that every person who shall be present at such fight, as an aid, second, or surgeon, or who shall advise, encourage, or promote such fight, shall be punished," an indictment which alleged that the defendant, by and in pursuance of a previous appointment and arrangement made to meet and engage in a fight with another person, did meet and engage in a fight," and that the defendant was present as an aid and second, and did advise, encourage, and promote a fight," was held sufficient within the rule that a charge in an indictment may be made in the words of a statute without a particular statement of facts and circumstances, when, by using those words, the act in which an offense consists is fully, directly, and expressly alleged, without any uncertainty or ambiguity. Com. v. Welsh, 7 Gray (Mass.) 324.

Indictment Bad. An act declared that "it shall be unlawful for any person to engage in prize fighting in this state, and any person engaged in such prize fighting shall be deemed guilty of a misdemeanor," etc. The indictment presented that the defendant, "by and in pursuance of a previous appointment and arrangement,

made to meet and engage in a prize fight with another person, to wit, with Jake Kilrain, did then and there, and for a large sum of money, the exact amount of which is to the grand jurors aforesaid unknown, did then and there, to wit, on the 8th day of July, 1889, in the second judicial district of Marion county, Mississippi, unlawfully engage in a prize fight with the said Jake Kilrain, to wit, did then and there enter a ring, commonly called a prize ring, and did then and there in the said ring, beat, strike, and bruise the said Jake Kilrain; against the peace and dignity of the state of Mississippi." The court held the count fatally defective as one charging the offense of prize fighting, which was not defined by the statute, nor did it declare what act done should be a violation of its provisions, saying: It is sometimes sufficient to charge the offense by using only the words of the statute. This may be done where the language of the statute is so specific as to give notice of the act made unlawful, and so exclusive as to prevent its application to any other acts than those made unlawful. ** But where the act prohibited does not clearly appear from the language employed, or where, under certain circumstances, one may lawfully do the thing forbidden by the literal meaning of the words of the statute, it is not sufficient to indict by the use only of the statutory words." Sullivan v. State, 67 Miss. 346.

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2. Seville v. State, 49 Ohio St. 117. 3. Sullivan v. State, 67 Miss. 346.