#### CHARLES HAMLIN *against*WILLIS A. HAMLIN, administrator.

Where a Court of Equity has acquired! jurisdiction of a cause hy the obligor in a bond’s .getting possession of tire 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 Ms 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.

*192Cause 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-otherfor $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, actual^, 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,, lie 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 tfie 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 *193complete remedy at law, lias no right to proceed with his suit in a court of Eqnitjn.

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 bankrupts property surrendered to the assignee, is estopped by such proceedings from recovering upon the said bonds.

lie further relies on the presumption of payment «.rising 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.

*JIaughton*and *B. F.*Moore, for plaintiff.

Moreheacl, for defendant.

Battle, J.

The defendant objects to the plaintiff’s recovering, upon throe .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 Slave been paid, more than ten years having elapsed between the time when they became due, and the commencement of the suit.

1. IVe are of opinion that the first ground >of defence is untenable. At the time when the bill wras 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 *194right 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 dons by his personal representative. No authority upon this point has been produced bj1" the counsel on either side, but we eaunot 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 bis 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 he 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, imtler*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 *195repel the presumption, we hold the one j ust 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.