The opinion of the Court was delivered by

There is one view of this case which relieves us from considering it in any other. There can be no duress from mere imprisonment when it is lawful; and an arrest like the present was held to be unlawful in Allison v. Rheam, only because the capias ad satisfaciendum was prohibited under the circumstances, and consequently void. On that ground and no other was the defendant held liable in an action of trespass for false imprisonment. The statute now in force, or that which was in force at the time of the arrest now in question, does not prohibit the capias in the first instance; and an arrest under it, where there is property to the value, is only voidable at the election of the debtor. It is very true that such an arrest persisted in against the remonstrance of the debtor, might make the creditor a trespasser ; but nothing like remonstrance is averred in the plea. The statute enacts that a capias ad satisfaciendum and a fieri facias may be sued out together; but that the former may not be executed where the defendant has property in the county to answer the debt and costs. The conditional exemption of the debtor’s person, like every personal privilege, may be waived; and it is virtually waived when the debtor allows himself to be arrested without objection, and without pointing out his property as the legitimate source of satisfaction.- As a matter applicable to the interpretation of the present statute, we dissent from the dictum of Mr. Justice Duncan in Berry v. Hamill, that it is the business of the creditor to inform himsélf of the debtor’s property, and that he acts in respect to it at his peril. True, it was decided in Allison v. Rheam that the existence of property to the value ipso facto made the capias void; but it was held that the creditor might call on the debtor for the proper information; and it is not to be doubted that if the latter had refused to give it, he would have been estopped from showing the truth of the case afterwards, in order to make the creditor a trespasser. Thus the capias would have been sustained notwithstanding the prohibition; and thus, according to Allison v. Rheam, the law would have been held under the late statute-. Its successor makes the legality of the arrest depend, not on the validity-of the writ, but on the propriety of its application. It sanctions the practice, prevalent under its predecessor, of suing out a capias and & fieri facias together; and, not declaring the writ to be unlawful in the first instance, it admits of a more liberal construction. " Now the object to be attained was not to entrap the creditor or beset his path with perils, but to exempt the debtor’s person from execution where satisfaction could be had from his property; and as the latter was to be the price of the former, it was necessarily made his business to tender it. By not claiming his privilege he waived it; and had he not waived it, he would have been bound to disclose the foundation of his title to it. A debtor is bound to disclose his property in order to exempt his person from arrest under the insolvent law, and why *430not disclose it to exempt his person from arrest under the execution law ? Certain it is that it was not the purpose of the statute to put him in an attitude of defiance, and prompt him to say — “ It is not my business to put you on the scent of my property: find it out as you may; but remember you act at your peril, and touch me if you dare.” The law is not so unreasonable as to require that the creditor take notice of matters so peculiarly in the debtor’s knowledge. It is true the plea contains an averment of notice; but notice of property without a claim of privilege on the foot of it, is not enough. The debtor may elect to waive his privilege and subject his person; and when he elects to have an execution levied on his property, it is his duty to give notice, not of the existence and whereabout of his property merely, but of his election also. Such an election is not to be presumed as an inference of law, for an arrest on final process is not always shunned. It has sometimes been embraced by a debtor as the lesser evil; and imprisonment has been endured for a lifetime rather than part with an estate in payment of debts. It is sometimes not even an adversary proceeding in anything but form, for there have been numerous instances of an arrest by a friend to put the party in the way of getting the benefit of the insolvent laws. A debtor may submit to it, choosing to surrender his property for general distribution rather than suffer the creditor to gain a preference by his execution; and when he says nothing about property or privilege, what is the officer to think? It might perhaps be successfully contended that even his silence would amount to an election at the time. But whatever may have been the validity of the arrest at the instant, it certainly admitted of confirmation, and the debtor as certainly confirmed it when he used it as the foundation of a right. His application to be set at liberty, giving bond to appear and petition at the return of the writ, was founded on the assumption of a lawful arrest. The statute describes him who is competent to make it, as a debtor “ arrested, detained or held by virtue (not colour) of any process or bail-pieceand it is a condition of the bond that he return to imprisonment failing to obtain his discharge — which would scarce have been said of an imprisonment false and unlawful. At least the condition shows that the proceeding was not intended to be a remedy for an unlawful arrest. Now if an exempt choose to waive his privilege, submit to an arrest, and proceed by petition to a judge, instead of a habeas corpus, he cannot afterwards refuse to be bound by his election. He may not resort to inconsistent remedies, assuming that the imprisonment is unlawful for one purpose and lawful for another; and this for the same reason that a landlord cannot proceed for use and occupation against a tenant whom he has dispossessed as a trespasser, or that a tenant cannot insist on notice, having denied his landlord’s title. It is a fundamental principle of the law of election, that a man shall not affirm one part of an act and *431disaffirm another, or treat it as both lawful and injurious. By-giving bond, the debtor took a position from which it is too late to recede. He admitted the imprisonment to be lawful; and where that is the case, duress from it is out of the question. It is said that if a man lawfully in prison make an obligation against his will, he may avoid it. Roll. Abr. 687. Doubtless he may, where there has been duress by other means of compulsion than the confinement. Where a plaintiff in a judgment which was recovered without a legal cause of action, had the defendant arrested under threats of imprisonment till he should perish if he would not execute a release, this was held not to be duress, but the exercise of a right by due course oflaw. 1 Lev. 69. It appears by the plea that the bond before us was given at the debtor’s own instance, and as his voluntary act. Whether he had originally forfeited his privilege by joining with unprivileged contractors, it is unnecessary to determine, as he certainly renounced it when he consented to be arrested and recognised the lawfulness of his imprisonment.

Judgment affirmed.