The opinion of the Court was drawn up by
Weston C. J.This is an action of debt on bond. The defendants have pleaded the general issue, under which by virtue of the stat. 1831, c. 514, they are entitled to give any special matter in evidence, upon filing in the cause a brief statement of such special matter. Under this statute, the defendants have filed a brief statement, assigning duress as a special ground of defence. As this is a substitute for special pleading, the defendants have the same rights, and no more, as they would have had, if before the statute, under leave to plead double, they had pleaded the general issue, and a special plea in bar, that the bond bad been obtained by duress. The execution of the bond is not controverted. The plaintiff therefore is entitled to judgment, unless duress has been made out; to which single point, as the only special matter set forth in the brief statement, the defendants are now limited.
The ground of duress relied upon, is an unlawful arrest or imprisonment. The officer had an execution in favor of the plaintiff, against the principal defendant, Fish, in which he was commanded to arrest his body. Fish, as a Senator for the State of Maine, claims to have been exempted from arrest, by virtue of art. 4, jpart 3, sec. 8 of the constitution. In our judgment, the officer, obeying his precept, was not bound to decide at his peril, first, that Ira Fish was a Senator of the State, secondly, that the execution debtor was the same person, and thirdly, that he was on his way to attend a session of the legislature. If he was entitled to the immunity claimed, there are legal modes, by which his privilege might *136be vindicated. It might bave been done by order of a court of competent jurisdiction, or by a Judge on habeas corpus, and possibly under the authority of the body, of which he was a member.
An officer, who acts in accordance with his precept, is not a trespasser, although the party arrested may be privileged from arrest. Carle v. Delesdernier, 13 Maine Rep. 363 ; Tarlton v. Fisher, Douglas, 671. In the latter case, Duller J. holds the officer excused in arresting a peer, if such is the mandate in the process he executes. And that case is a strong authority to show, that the responsibility of determining the legal validity of the exemption, is not thrown upon the officer. Mr. Fish had not taken his seat in the Senate; and it belonged to that body to determine definitively, whether he was duly elected.
In Comyn’s Dig. title Dignity, (F. 3,) it is said, if a peer be arrested by a process, which names him a peer, a supersedeas shall go. If he never sat as a peer, nor be named so, he ought to plead. And the court refused to try the right of a peer, who had never sat in parliament as such on motion. Lord Banbury’s case, 2 Ld. Raymond, 1247. The case of the Earl of Lonsdale v. Littledale, 2 Hen. Bl. 267, 299, and of Digby v. The Earl of Sterling, 2 Moore & Scott, 581, show the strictness required, where the privilege of peerage is asserted. Privileges of this character, although founded upon what the public interest is supposed to require, when set up at the instance of the party, are regarded as personal, and such as may be waived expressly, or by implication, when not asserted at the proper time and in the proper manner.
In this case, the jury have found an express waiver of privilege, by the principal defendant. And they were well warranted in this deduction, from what he said to officer Haynes, who thereupon desisted from arresting him at a certain time, when, very clearly, the exemption claimed had not attached. In connection with this testimony, the jury might understand, that the protestation he after-wards made to Saunders, amounted to little, if any, more than this, that although he agreed to be committed, which he then did, the officer, nevertheless, had no right to commit him. But we are of opinion, that the arrest, being made in obedience to the precept, and upon a waiver of privilege by the principal defendant, the point of duress, taken in defence, is not sustained.
Judgment on the verdict.