Hamlin v. Hamlin

• Citation: 56 N.C. 191,3 Jones 191
• Parties: CHARLES HAMLIN v. WILLIS A. HAMLIN, administrator.
• Decision Date: 30 June 1857
• Court: United States State Supreme Court of North Carolina

3 Jones Eq. 191

56 N.C. 191

CHARLES HAMLIN

v.WILLIS A. HAMLIN, administrator.

Supreme Court of North Carolina.

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.

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...