William Hasell Gibbes against John Mitchell.
Charleston District,
1802.
Privilege of one of the debtor’s in a joint and several bond on account of his being a member of the legislature,shall not protect the other co-obligor on a separate action against him on the same bond*
DEBT on bond. Verdict for plaintiff. Motion for a new trial.
The bond on which this action was brought, was a joint and several bond, given by the defendant and his brother William B. Mitchell. The latter was a member of the legislature, and the suit was commenced at a time when he was privileged from arrests, on account of his being a member of the legislative body ; he pleaded his privilege and it was allowed him ; upon which his brother, the present defendant, claimed a similar privilege, on the ground that he was only security to the bond, and that the privilege extended to him as well as the principal; and that the privilege of the other co-obligor, would be illusory if it was not extended to him also ; but the presiding Judge (Waties) refused to allow the privilege to him, which had been extended to his brother the member of the legislature, or to postpone the trial, as the bond was joint and several, and the law did not know the defendant as security but as one of the principal debtors. The case then went to the jury, who found a verdict for the plaintiff against him.
This was therefore a motion for a new trial, as it was alleged the judge had mistaken the law, in not allowing *407the defendant the same privilege which had been allowed the other co-obligor.
But the other judges, after hearing argument, unanimously confirmed the decision of the judge in the circuit court below ; because, on every joint and several bond, where the actions are separated against two or more defendants, every individual is liable in his separate and distinct capacity ; and the privilege or exemption from arrest, which the law allows to one of the defendants, will not prevent the ordinary course of justice, against any of the other co-obligors. This privilege is not to be extended by implication, because a fellow debtor is entitled to legislative exA emption from arrests.
New trial refused.
Present, Grimke, Johnson, Trezevant and BRE-VARD.