DECEMBER TERM, 1848.

#### NANCY TUBBS & AL. *vs.*HORATIO N. WILLIAMS, EX’R, &c.

When a debtor has been discharged under the bankrupt law, a surety, who might have come in under the commission, cannot afterwards recover from the debtor. Consequently where the surety appointed the debtor bis executor, the residuary legatees of the surety cannot make the executor accountable for the debt.

Appeal from the Superior Court of Law of Pasquotank County, bis Honor Judge Bailey presiding.

This was a petition to recover residuary legacies from the defendant as executor of William D. Tubbs, in which the following case agreed was submitted to the Court.

*2William D. Tubbs, in his lifetime, became the surety of H. N. Williams and C. C. Green, who were merchants and partners trading in Elizabeth City, under the firm and style of H. N. Williams and Company, on a note signed by them, H. N. Williams & Co. payable to Lovey S. Pool, executrix of Thomas Pool for the sum of five thousand dollars, and interest from the 1st day of February, 1842. The said Wm. D. Tubbs, by his last will and testament, appointed the said H. N. Williams his Executor, and died in 1840. The said Williams duly qualified as executor, and took possession of the legacies bequeathed to the petitioners and others. At the Fall Term, 184S, of Pasquotank Superior Court, judgment was obtained on the said note against the said Williams and Green and against the said Williams as Executor of Wm. D. Tubbs, execution issued thereon and was subsequently enjoined. Shortly after the rendition of the said judgment on the said note, the defendant Williams was decreed a bankrupt, as was also the said Green, and received his certificate of discharge at Fall Term, 184, of the District Court of the United States for the District of North Carolina, at Edenton. The said Williams retained the possession of the negroes and other legacies, bequeathed to the petitioners, and hired them out and received the hires, according to the report of W. W. Griffin as herewith filed, up to the 1st of June, 1847. Execution issued on said judgment from Fall Term, 1842, of Pas-■quotank Superior Court, against H. N. Williams & C. C. Green, merchants and partners, trading under the firm and style of H. N. Williams & Co., and H. N. Williams, Executor of Wm. D. Tubbs, returnable to Spring Term .1843 of said Superior Court, which was enjoined by a writ of injunction issuing from the District Court of the United- States for the District of North Carolina, at Edenton.

*3The plaintiff in the said execution .proved her said debt regularly before the Commissioner in Bankruptcy for the County of Pasquotank, and received, the dividends declared from the assignee and endorsed the same as credits on her said claim. The plaintiff in the said judgment af-terwards issued her *scieri facias*against the defendant, Williams, as the executor of William D. Tubbs, on her said judgment, returnable to Fall Term, 1846, at which Term of the Superior Court of Pasquotank, her judgment was revived for the amount then due on the same, against the defendant, as the executor of W. D. Tubbs. Execution issued on the said judgment, returnable to Spring Term, 1847, of Pasquotank Superior Court, and, by virtue of which, the sheriff of Pasquotank County levied on the negroes in the hands of the defendant, as the executor of W. D. Tubbs, and which were the same given in the will of the said Tubbs to the petitioners. The negroes so levied upon were subsequently sold under a *venditioni exponas,*returnable to Fall Term, 1847, of the Superior Court of Pasquotank, issued on said judgment. As will appear by the report of W. W. Griffin, the sum of $1,556 71, assets of said W. D. Tubbs, which came to the hands of the defendant, Williams, as executor of said Tubbs, which amount arose from the legacies and were part of the legacies bequeathed to the petitioners, was applied to the satisfaction of the balance due on said judgment and execution in favor of the said Lovey S. Pool, to and upon which debt, Tubbs is admitted to have been surety only.

Now if upon the foregoing case agreed, his Honor shall be of opinion, that the defendant, H. N, Williams, notwithstanding his certificate and discharge as abankrupt, is liable to account to and with the petitioners for the said sum of $1,556 71, applied as aforesaid to the payment of the balance due as aforesaid on the execution aforesaid, then judgment is to be rendered in favor of the *4petitioners for $1776 94, with interest from the 23rd October, 1848. Bat should his Honor be of a different opinion, and hold that the defendant is only liable for the balance reported by said W. W. Griffin, to-wit, *$220 23>*then the report is to be confirmed and judgment accordingly.

His Honor being of opinion that the defendant, Williams, was only liable for the said balance of 220 23, as found and reported by said Griffin, gave judgment and decreed accordingly, from which judgment and decree, the plaintiff prayed for and obtained an appeal to the Supreme Court.

No counsel for the plaintiff in this Court.

*Heath,*for the defendant,

submitted the following argument :

“Plow can Williams be held liable to Tubbs’ legatees for this amount ? Williams was discharged from all his debts, and ©f coursa from this ; Tubbs, then, though he signed originally as surety, was, by Williams’ discharge as a Bankrupt, left the sole Debtor, as much so, as if Williams had never been liable for the debt. Suppose Tubbs were living, and had paid the debt, after Williams was discharged as a bankrupt; as Williams was *discharged from the*deéí,lTubbs could maintain no action against him, for the reason that Williams’ discharge would bar it. And as Tubbs, if alive, could maintain no action to enforce the claim, for the reason, that the claim has no legal existence, so neither can Tubb’s legatees, maintain the present proceeding to recover the amount of Lovey Pool’s execution ; *for,*though sueing as legatees, they are still sueing on Tubb’s right.

Pearson, J.

It is provided by the bankrupt act, that, under a commission against the principal, a surety may prove the debt, and the certificate is a discharge of the principal, from the cause of action or claim, as well of *5the surety, as of the creditor; so that if Tubbs, the surety, was living, and had been forced to pay the debt, he could not recover from the defendant. This, it seems to us, is decisive of the case. The petitioners apply for their legacies: the defendant insists, that a large part of the assets, which would otherwise have been applicable to their legacies, has been taken by a judgment creditor. The petitioners reply, that was a debt upon which our testator was your surety. The defendant rejoins, “true ! but I was discharged as a bankrupt, your testator had no cause of action against me, and you, who stand in his place, can have no higher claim.”

We concur with his Honor.

The decree below must be affirmed.

Per Curiam. Judgment affirmed.