In this jurisdiction the immunity rule has been applied to a case in which a defendant in a civil action was served with process while he was in a county, of which he was not a resident, in obedience to a citation from a member of the Department of Public Safety to answer a criminal charge. Morris v. Calhoun, 119 W. Va. 603, pt. 3 syl., 195 S.E. 341. It has also been applied to a case in which a person charged with a criminal offense in a county of which he was a nonresident, was arrested therefor in that county and later released on bond on his own recognizance, and who, in pursuance of such recognizance, returned to the county to answer the charge on the day set for trial. Lang v. Shaw, Judge, 113 W. Va. 628, syl., 169 S.E. 444. But in the case of State ex rel. Godby v. Chambers, Judge, 130 W. Va. 115, pt. 2 syl., 42 S.E.2d 255, this Court held that "A person serving a sentence for a misdemeanor is not immune to the service of a summons in a civil proceeding." In the Godby case the Court refused the writ of prohibition on the ground that after petitioner's conviction, sentence, and incarceration on a misdemeanor charge, the reason for the application of the immunity rule was not present, and that in that case there was no criminal process within the meaning of the immunity rule.

It has been held that prohibition is the proper remedy to be used in a case of this kind to test the jurisdiction of the court over the subject matter or the person. Lang v. Shaw, 113 W. Va. 628, 169 S.E. 444; Morris v. Calhoun, 119 W. Va. 603, 195 S.E. 341; Godby v. Chambers, 130 W. Va. 115, 42 S.E.2d 255; Fisher v. Bouchelle, 134 W. Va. 333, 61 S.E.2d 305; Sivnksty v. Duffield, 137 W. Va. 112, 71 S.E.2d 113. The answers of the respondents contend that immunity from service of process on a nonresident in a civil action is only applicable when the nonresident is in the State of West Virginia in pursuance to a criminal or quasi criminal proceeding.

* * *" That such immunity does now exist against service of civil process in certain cases is well established by the Whited case, supra, and by Lang, et al. v. Shaw, Judge, etc., 113 W. Va. 628, 169 S.E. 444, wherein it was held: "A party who is charged with a criminal offense in a county other than that in which he resides, and who was released on his own personal recognizance, and who, in pursuance thereof, appears and answers to the charge on the day set for trial, it is not liable to be served in such county with process in a civil action until after a reasonable time has elapsed to enable him to return home."

However, since the point is not specifically raised by demurrer to the petition or otherwise, we do not regard it as necessary to consider it now, and comment only in order that we may not be understood as approving the absence of oyer in treating process under attack as a part of the record. That prohibition lies to test the question of jurisdiction over the person of a defendant in a personal action has been settled in this jurisdiction by the cases of Lang, et al. v. Shaw, Judge, 113 W. Va. 628, 169 S.E. 444, Wolfe v. Shaw, Judge, 113 W. Va. 735, 169 S.E. 325, and Morris v. Calhoun, Judge, 119 W. Va. 603, 195 S.E. 341, the latter case definitely holding that upon an original proceeding in prohibition in this Court it is not necessary that the questions involved shall have first been passed upon by the trial court. In the case of Whited v. Phillips, 98 W. Va. 204, 126 S.E. 916, Judge Hatcher, speaking for this Court, gives an accurate historical resume of the development of the immunity rule, referring to the fact that its origin was based solely upon the untrammeled functioning of the courts, and to see that the fear of litigation would neither hamper nor obstruct the person served with their process from attending at the time and place named therein.

Courts are not in accord as to whether the rule is available to a resident of a state who appears to answer legal process in a county other than that of his residence. The question has been determined in this State. Godby v. Chambers, supra; Morris v. Calhoun, 119 W. Va. 603, 195 S.E. 341; Lang v. Shaw, 113 W. Va. 628, 169 S.E. 444. In the case last cited, the Court held: "A party who is charged with a criminal offense in a county other than that in which he resides, and who was released on his own personal recognizance, and who, in pursuance thereof, appears and answers to the charge on the day set for trial, is not liable to be served in such county with process in a civil action until after a reasonable time has elapsed to enable him to return home."

Taking the allegations of the petition to be true, as we must, the petitioner is clearly entitled to the relief prayed for. At the time of the service of process in question, he was in Hampshire County as the result of a command on the part of a law-enforcing authority of the State to be present in said county on that day to answer a specific charge well-known to him. Whether his presence in that county was voluntary or involuntary is immaterial; nor is it of consequence that no warrant had been issued or an indictment returned against him. While in Whited v. Phillips, 98 W. Va. 204, 126 S.E. 916, 40 A.L.R. 83, Phillips, a resident of Washington, D.C., was indicted in Roane County and, learning of such indictment, voluntarily appeared in that county to answer the same, and was served with process in a civil case in that county, it was held that he was privileged while attending court from service of process in the civil case; it was held in Lang v. Shaw, 113 W. Va. 628, 169 S.E. 444, where Lang, a resident of Harrison County, became involved in an automobile accident at some point in Marion County, was arrested by the officials of a municipality and released by the mayor on his personal recognizance, and when he returned to answer such recognizance, was served with civil process, that he was not liable to such service until after a reasonable time had elapsed to enable him to return home. In one case, the appearance in the county where the process was served was, technically, voluntary, while in the other case, his personal recognizance required and in a measure compelled his appearance.

The service in Jefferson County after the return day, as well as the unauthorized service in Berkeley County was illegal upon the face of the return. 56-1-2, Code 1931; Wolfe v. Shaw, 113 W. Va. 735, 169 S.E. 325; Lang v. Shaw, 113 W. Va. 628, 169 S.E. 445; Walker v. Stevens, 52 Neb. 653, 72 N.W. 1038; Burks Pl. Pr. (2nd Ed.), page 318; and 1 Barton's Chan. Pr. (3rd Ed.) 151. Code 1931, 56-3-21, provides: "If, at the return day of any process, it be not returned executed, an alias or other proper process may be issued without waiting (where the first process is returnable to a term) for the subsequent process to be awarded at rules.

ruling the plaintiffs' demurrer to the affirmative defense and cross-complaint, was error. (46 C.J. 575 et seq.; Riverside Coal Co. v. American Coal Co., 107 Conn. 40, 139 A. 276; Illinois Central Life Ins. Co. v. Benner, 78 Kan. 511, 97 P. 438; J.R. Mitchell Son v. LaFayette Inv. Realty Co., 30 Ga. App. 696, 118 S.E. 777; Murphy v. White, 101 Cal.App. 719, 282 P. 427; Farmers' Merchants' Nat. Bank v. Del-Bay Farms, (N.J.) 131 A. 679; Morecraft v. Allen, 78 N.J.L. 729, L.R.A. 1915B, 1, 75 A. 920; Barnes v. Crockett's Admr., 111 Va. 240, 36 L.R.A. (n.s.) 464, 68 S.E. 983; DeLong v. Mission Marble Works, 95 Cal.App. 741, 273 P. 107; Producer's Fruit Co. v. Goddard, 75 Cal.App. 737, 243 P. 686; Moers v. Moers, 229 N.Y. 294, 14 A.L.R. 225, 128 N.E. 202; Lockwood v. New York Life Ins. Co., 175 App. Div. 24, 161 N.Y. Supp. 700, affirmed 223 N.Y. 714, 120 N.E. 867; Gunther v. Atlantic Refining Co., 277 Pa. St. 289, 121 A. 53; Pacific States Secur. Corp. v. Austin, 146 Wn. 492, 263 P. 732; Lang v. Shaw, 6 Ga. App. 747, 65 S.E. 789; Scott v. Stone, 149 S.C. 386, 147 S.E. 449.) The allegations set forth in the so-called affirmative defense and cross-complaint do not state facts sufficient to constitute an affirmative defense or cross-complaint to the complaint herein upon the theory of forfeiture as attempted to be alleged in said affirmative defense and cross-complaint, under section 8658, Revised Codes 1921. There are no allegations that the breach of the contract by the answering defendant, Reka H. McCauley, was not due to her "grossly negligent, wilful or fraudulent breach of duty," which is required to be alleged and proven in a case brought under that section.