AUGUED AND DETERMINED IN

THE SUPREME COURT

OF

NORTH CAROLINA

AT RALEIGH.

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 his 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, his 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.

Tubbs v. Williams.

William 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 be queathed to the petitioners and others. At the Fall Term, 1842, 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.