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.