Henry v. Black's Adm'rs , 24 Ala. 417 ( 1854 )

PHELAN, J.

Henry was the fourth and last endorser on a note for $300, made by one Wheeler, and endorsed by T. B. Rector, E. L. Rector, William Black, and plaintiff in error, in the order in which their names are stated. Said note was dated 2d September, 1844, payable at six months, and was held by the Branch Bank at Huntsville.

Black’s’estate was duly, declared insolvent, 14th of August, 1848. On the 13th of April, 1849, more than six months after, Henry paid the balance due on said note to the Bank, and on the 17th of April filed his claim on account of the payment of said balance ($161 17), as a claim against the estate of Black, in the clerk’s office. Upon the settlement it was objected to this claim, that it had not been filed within six months after the estate had been declared insolvent ; and the court rejected the claim on that ground.

Until the payment of the balance due on the note, Henry had no claim against the estate of Black. His claim or demand then first accrued ; and we have held, in the case of Powe & Smith v. Tyson’s Ex’rs, 15 Ala. 221, that the presentation or filing of a claim, within six months after it accrues, is sufficient under the equity of the statute (Clay’s Dig. 194 § 10); and that the neglect of the holder of the note to filefor present it within the six months, will not affect a surety who pays it after that time.

There is no just distinction to be taken, as we conceive, between the case of a surety on the face of a note, and an , endorser, as respects the right to present the claim within six months after he has paid it, against the estate of the maker or any prior endorser, which may have been declared insolvent more than six months before such payment.

The claim was filed in due time, and should not have been rejected on that ground.

The judgment of the court below is reversed, and the cause remanded.