Emerson v. Paine , 176 Mass. 391 ( 1900 )

Lathrop, J.

Both parties in this case have assumed that the note discounted by the Newton bank was a renewal of the original hate discounted by the Watertown bank. Assuming it to be such, the only question is whether Emerson, the indorser, having a promissory note given to him as collateral security by Perkins, the maker, and which -by agreement was to apply to all renewals of the original note, can prove his claim against the insolvent estate of Perkins, who has deceased, the Newton bank having proved the note discounted by it against said estate in full.

We see no reason why the claim cannot be proved. There is nothing in the "Pub. Sts. c. 137, relating to the insolvent estates of deceased persons, or in our decisions, to prevent it. The note was given for a valuable consideration, namely, the lending by Emerson of the credit of his name to Perkins. An action upon it could have been maintained by the holder against the maker in the lifetime of the latter ; Hapgood v. Wellington, 136 Mass. 217; and it follows that it may be proved against his estate. Moseley v. Ames, 5 Allen, 163. Miller’s River National Bank v. Jefferson, 138 Mass. 111.

Emerson does nob seek to prove his claim as an indorser, nor does he ask the Probate Court for an order, under the Pub. Sts. c. 137, §§ 28-30, as the holder of a contingent claim, and the case, therefore, does not come within Cummings v. Thompson, 7 Met. 132, and French v. Hayward, 16 Gray, 512.

Binding reversed.