The opinion of the Court was delivered by
Rogers, J.An arrest, after discharge of an insolvent, is illegal, for the discharge operates as an exemption of the person from arrest, for a debt previously contracted. And this it was incumbent on the defendant to prove; but of the material fact involved in the above proposition, to wit, that the debt was incurred before the discharge, I see no evidence. The judgment under which the execution was issued was rendered, by confession, after the defendant took the benefit of the Act, and if there is nothing more, of course he was liable to arrest as under a new contract. It was in .evidence that one John. Litchfield obtained a judgment against George Coleman,'which was assigned to the plaintiff on the 5th April 1839, before Coleman’s discharge; but the defendant failed to prove, although he asserted it to be so, that this was the consideration of the judgment afterwards confessed by him to the plaintiff. The fact that the judgments are for about the same sum proves but little. Besides, it is difficult to understand why another judgment was deemed necessary, unless upon the ground of a new contract, of which the former was the consideration. But this position would not help the defendant, as he would then be liable, without doubt, in his person as well as his goods.
It must be remarked that it does not appear on the face of the proceedings when the debt was contracted; but if before the discharge, the defendant was bound to show it. The judgment is confessed generally, and as the exemption from an arrest is a personal privilege, it may be waived, and we deem the confession of the judgment, without reservation, tantamount to an express waiver. Ignorance of the law is no excuse to the defendant; for granting that it is for the same debt, and that it was incurred before the discharge, the defendant has precluded himself from the benefit of this defence; for the judgment must have the same *71incident of every other judgment, among which is the unquestionable right to take the person of the debtor in satisfaction of the debt. .We cannot go out of the record and examine into the facts which are the groundwork of the defence, of whether the debt was contracted before or after the discharge. Besides, it seems that the defendant submitted to the arrest, and gave the bond in suit, with James Coleman as security. If dissatisfied with the arrest he might have been discharged on habeas corpus, but having refused to resort to this mode of redress, he cannot afterwards avail himself of this defence against his bond.
This is a joint suit against the principal and surety, on a joint and several bond, and it is questionable whether the surety can avoid the bond by reason of the duress of his principal. This point is decided in Huscomb v. Harding, (Cro. Jas. 187). The case was debt, upon an obligation of £40, conditioned that Richard Street should pay £20 on such a day, &c.
The defendants pleaded that the said Street was imprisoned by one Everly, Steward of the Stanneries, and the plaintiffs of covin with him, and, without any reasonable cause, detained the said Street in prison, against law and to the great peril of his life, until the said Street should pay to the plaintiff £24, or become bound with a surety for the payment thereof; whereupon, to enlarge the said Street and to avoid the danger of his life, he and the defendant as his surety entered into that bond.
It was therefore demurred, and, without argument, adjudged that it was not any plea for the surety, although it had been a good plea for the said Street; for none shall avoid his own bond for the imprisonment or danger of another than of himself only; and although the bond be avoidable as to one, yet it is good as to the other; whereupon it was adjudged for the plaintiff.
Judgment reversed, and a venire de novo awarded.