Opinion
(June Term, 1857.)
Where a Court of Equity has acquired jurisdiction of a cause by the obligor in a bond's getting possession of the paper and pretending it was destroyed, it will not lose it afterwards by his personal representative producing the obligation.
A creditor who takes a dividend of the effects of a bankrupt, surrendered to the assignee, under a petition filed by him, is not thereby estopped from collecting the remainder of his debt, if the debtor fails to get his certificate.
The payment of a part of a bond within ten years, by an assignee in bankruptcy out of the funds and with the assent of the obligor, repels the presumption of payment arising from the length of time.
CAUSE removed from the Court of Equity of Randolph County.
Haughton and B. F. Moore, for plaintiff.
Morehead, for defendant.
The intestate, William A. Hamlin, being indebted to his brother Charles Hamlin, the plaintiff, and to many other persons, made application to the District Court of the United States to be permitted to take the benefit of the bankruptcy act of Congress; and the assignee for the county of Randolph, in which the said William A. resided, having notified him, among other creditors, to bring in his claims, he enclosed in a letter to his brother William, two bonds — one for $414,65, dated 10th of January, 1833, and the other for $224,88, dated 6th of August, 1834; in which letter he also enclosed a power of Attorney for Willis A. Hamlin, the defendant, son of the intestate, appointing him agent to receive any dividends which might accrue to him from the estate surrendered by the petitioner. The said William A. Hamlin, defendant's intestate, proceeded in his application to the court of bankruptcy, and took all the preliminary steps to entitle him to a certificate in bankruptcy, but never, actually, obtained one. The defendant, as agent of the plaintiff, received from the assignee in bankruptcy, on the _____ of July, 1851, as his share of the proceeds of the property surrendered by the defendant's intestate, for the use of his creditors, $190.
In March, 1852, the plaintiff applied to the defendant's intestate, shortly before his death, to know what had become of the bonds sent to him, when he informed him he had burnt them.
The plaintiff alleges that, after the appointment of defendant as administrator, he demanded payment of the amount due on the said bonds from him, but he refused to pay the same. He alleges the loss of the bonds, and that sufficient assets have come to the hands of the defendant, as administrator of his father, for the payment of his debts; and he prays for a decree to that effect.
The defendant, in his answer, admits the facts above stated, except that the bonds in question were not burned, but avers their present existence in his hands, and offers to file the same in court. He insists, therefore, that the plaintiff, having a complete remedy at law, has no right to proceed with his suit in a court of Equity.
He further contends that the plaintiff, having come in under the proceedings in bankruptcy, and having received a pro rata of the amount raised by sale of the bankrupt's property surrendered to the assignee, is estopped by such proceedings from recovering upon the said bonds. He further relies on the presumption of payment arising from the length of time, which was more than ten years from the time the causes of action accrued. The defendant admitted assets.
There were replication to the answer, commissions, and proofs; and the cause being set down for hearing, was transmitted to this Court for trial.
The defendant objects to the plaintiff's recovering, upon three grounds: 1st. Because the bonds have been found, and, therefore, the plaintiff may have complete redress at law. 2ndly. Because the plaintiff is estopped from denying that the intestate was duly discharged as a certificated bankrupt, under the bankrupt law of 1841, the said plaintiff having applied for and received a dividend out of the effects of the intestate as a bankrupt. 3rdly. Because the bonds upon which the suit is brought are, from length of time, presumed to have been paid, more than ten years having elapsed between the time when they became due, and the commencement of the suit.
1. We are of opinion that the first ground of defence is untenable. At the time when the bill was filed, the Court undoubtedly had jurisdiction of the cause as a suit upon a lost bond. The plaintiff states, and the defendant admits, that the intestate told the plaintiff that the bonds had been burnt. The intestate had not, in fact, destroyed them, but he had them concealed from the plaintiff, and the latter had, therefore, the right to proceed in Equity to recover upon them as lost bonds. The Court having thus rightfully acquired jurisdiction of the cause, surely the intestate would not have been allowed to defeat it by producing the bonds which he stated that he had destroyed; and what would not have been allowed to him, cannot now be done by his personal representative. No authority upon this point has been produced by the counsel on either side, but we cannot hesitate in deciding that the jurisdiction of the Court of Equity in such cases cannot be thus defeated.
2. We are not aware of any such ground of estoppel as that contended for by the defendant. The plaintiff was proceeding lawfully when he presented his claim for a dividend out of the effects of the defendant's intestate assigned to a commissioner under the bankrupt law. It was not his fault, but the fault of the intestate that the latter did not use the necessary means for obtaining his certificate of discharge. As, under the provisions of the bankrupt law, nothing short of his obtaining a decree discharging him as a bankrupt, could discharge his debts, we cannot perceive how the plaintiff, by receiving a part of what was due to him, can be prevented from claiming the residue. The defendant has failed to produce the only proper evidence of the discharge of his intestate as a bankrupt, and the plaintiff has not done anything to relieve him from the necessity of so doing, or to bar himself from the relief which he now seeks.
3. The defendant cannot, under the circumstances, avail himself of the lapse of time as a presumption of payment. It is well known that an express acknowledgment of a debt, or one implied from a part payment of it, will prevent the presumption from arising. Here, a part of the debt was received by the plaintiff's agent from the commissioner in bankruptcy by the assent of the intestate, and after that it was too late for him to allege that it had been paid, and rely upon the presumption as evidence of the fact. Without adverting to the other circumstances relied upon by the plaintiff's counsel to repel the presumption, we hold the one just adverted to, to be sufficient for that purpose.
The plaintiff is entitled to a decree for the amount due on the bonds in question, after allowing all just credits.
PER CURIAM, Decree accordingly.