
    * Edward St. Loe Livermore, Assignee of Edmund Bartlet, a Bankrupt, versus Joseph Swasey.
    In an action, by the assignee of a bankrupt, to recover property formerly belonging to the bankrupt, the judgment of the District Court, founded upon the verdict of a jury, that the party had committed an act of bankruptcy pursuant to the 52d section of the bankrupt law, is final upon the question, as to all the creditors, as well those who shall have come in under the com mission as others. h
    This was a writ of entry, brought to recover possession of a parcel of land heretofore the property of Bartlet, the bankrupt. The action was submitted to the determination of the Court upon the following facts agreed by the parties.* ,
    The said Bartlet was seised in fee of the premises demanded in the original writ, on the 21st day of September, 1802, and remained so seised, from that time, until he was divested of it in manner hereinafter stated.
    He was at that time, and long before, a merchant, residing at Newburyport; and on the 24th day of said September a commission of .bankruptcy was issued in due form of law against him, on the petition of George Jenkins, to whom the said Bartlet was then indebted, in the sum of 1000 dollars and upwards. He was after-wards declared a bankrupt, by the commissioners named in the commission, and the plaintiff was chosen assignee of his estate and effects.
    In June, 1802, the defendant recovered a judgment against the said Bartlet for the sum of 932 dollars 97 cents, and on the 10th day of July following, sued out his execution thereon, and on the 25th day of September aforesaid, caused the same to be levied on the demanded premises, as part of the estate of said Bartlet, and the same was accordingly on that day duly levied thereon.
    On or about the 5th day of July, 1802, Bartlet, being unable to pay all his debts, called certain meetings of his creditors, in order to propose to them certain terms of compromise.
    This attempt was continued, from time to time, until about the 21st day of September aforesaid, when the Newburyport Marine Insurance Company, having an execution against Bartlet, began to levy the same on certain of his goods and chattels, which were afterwards sold on the execution, and the said compromise was no further attempted.
    * On the said 5th day of July, the said Bartlet, being [ * 214 ] uncertain whether the said compromise would be effected, had determined to cause himself to be declared a bankrupt, and for that purpose agreed with one Oliver Osgood, to whom he was then indebted, that Osgood should purchase a writ of attachment for his said debt, and have it so served or conducted as to constitute an act of bankruptcy in said Bartlet. Osgood accordingly delivered his writ to Philip Bagley, a deputy sheriff, to be served or conducted according to the agreement aforesaid, and with directions to serve the writ when Bartlet should request it.
    Afterwards, on the evening of the said 21st day of September, when the said (¡Bartlet perceived that the said compromise could not be effected, and that his goods had been taken on said execution, and that the defendant’s said execution was delivered to the said Bagley, to be served as aforesaid, in order to defeat or prevent the serving of the said two executions, he applied to the said Bagley ; and it was agreed between them that Bartlet should be at his dwelling-house at ten o’clock that evening, and should close and fasten his doors, that Bagley should call at that time with said writ, and should be refused admittance. -Bagley accordingly went at the time with the writ, and knocked at the door, when Bartlet looked out from his window, and told him he should not enter the house, which he did not attempt, nor did he examine to see whether any other door of the house was open, it being understood between Bartlet and Bagley, that this was done for the purpose of making Bartlet a bankrupt.
    It was found by the verdict of a jury, to whom the question was submitted, that for some time previous to the said 21st day of September, the said Jenkins knew of the said Bartlefs intention to commit an act of bankruptcy, and that he applied for the said commission on the 22d day of said September, with Bartlefs knowledge.
    In October, 1802, the said Newburyport Marine Insurance Company, who were creditors of Bartlet, but had not f * 215 ] *come in under the commission, applied by petition to the district judge for the district of Massachusetts, averring that the said Bartlet had not committed an act of bankruptcy, and praying an inquiry therein by a jury; and it was thereupon adjudged in the District Court aforesaid, that the said Bartlet had committed an act of bankruptcy.
    If the Court should be of opinion, upon these facts, that the plaintiff was entitled to recover, the defendant agreed to be defaulted, and if otherwise, the plaintiff agreed to become nonsuit.
    
      Jackson, foi the defendant,
    observed that having caused his execution to be levied on the demanded premises, which were agreed to have been the property of Bartlet, this would give him a good title, unless the case shows such an act of bankruptcy in Bartlet, 
      and such proceedings in consequence, as will defeat the levy of the execution. And he contended, first, that no act of bankruptcy was committed; and secondly, that the commission was taken out by collusion with the bankrupt, and for his benefit and convenience.
    As to the first point, the act relied on was keeping his house, so that he could not be taken or served with process. The first objection to this act of bankruptcy is, that it was wholly arranged and conducted by concert and agreement between Osgood and Bartlet It is hardly possible to imagine a stronger case of concert and collusion. Without recurring to authorities, it is very clear that a case like this could not be within the intention of the legislature. They evidently contemplate a creditor seeking to arrest his debtor, or to serve him with some process for the recovery of a debt; and being unjustly delayed by the debtor’s keeping his house with intent to prevent the service. But nothing of this appears in the present case.
    Tt is said by the Court, in the case of Livermore, Assignee, vs. Bagley, 
       that the legislature of the United States undoubtedly had a view to the English statutes and decisions on the subject of bankruptcy. The act of bankruptcy *in the [ * 216 ] English system, most analogous to that now in question, is described in the statute of 13 Eliz. c. 7. — “ If any merchant, &c begins to keep house, to the intent or purpose to defraud or hinder any of his creditors,” &c. It is perfectly settled in that country that the keeping house, in pursuance of a previous agreement with the creditor who calls for payment, is not an act of bank ruptcy. 
    
    But if the ground of this objection fail, and such an act of bank ruptcy would be considered valid and effectual against strangers, notwithstanding the previous concert and collusion "with the creditor, let this case be tested by the principles applicable to a bond fide act.
    The mere fact of keeping house does not of itself constitute an act of bankruptcy; it is but prima facie evidence of it, and may be explained by circumstances, as sickness, the lateness of the hour, &c.  It is not, then, an act of bankruptcy to lock his doors against a sheriff at ten o’clock at night. Such a question is not affected by the solvency or insolvency of the party. If it w?-s an act of bankruptcy in Bartlet, it would have been so in thi wealthiest merchant in the country. It ought at least to appear, in such a case, that the party had continued to keep house for som< • time before or after; otherwise the Court will presume that he kep his house at so late an hour, with intent to retire to rest, and not t« defraud his creditors. 
    
    This was not a bona fide act; for Bartlet did not intend to delaj or defraud Osgood. The whole transaction had been agreed on and was rather intended to promote and favor his views. But the intent is as essential as the fact of delaying a creditor. 
    
    But, further, such an intent alone is not sufficient, unless an attempt be made to serve the party with process, or a creditor be in fact delayed;  neither of which appears in the present case.
    [*217] *Ifa valid and effectual act of bankruptcy has been shown, yet if the commission was taken out by collusion and concert with the bankrupt, to defeat an execution, or prejudice another creditor, it is void and ineffectual as against such creditor. In the present case, it clearly appears that the commission was taken out, by concert with Bartlet, by Jenkins, who was his brother-in-law, with intent to defeat the defendant’s execution, and that of the Newburyport Marine Insurance Company. The case ex parte Salkeld 
       is much stronger than the present, in all its circumstances. In Menham vs. Edmonson, 
       the same principle is recognized. In this last case, the act of bankruptcy was not questioned; the only inquiry was, whether the commission had been taken out by concert with the bankrupt, in order to defeat the execution. If so, it was not doubted that it would be wholly ineffectual, as against the judgment creditor.
    The judgment in the District Court, on the petition of the Newburyport Insurance Company, cannot have any effect in this case; for the present defendant is neither party nor privy to the judgment. The same judgment was introduced in the case of Livermore vs. Bagley, and was not there considered by the Court as having any operation. Indeed, the present defendant might as well contend that the verdict and judgment in Bagley’s case shall now be conclusive in his favor.
    An act of bankruptcy, and a commission under it, may be valid and effectual against one creditor, and not against another. The books are full of such cases, and most of those before referred to are authorities to this point.  Suppose that, instead of the insurance company, Osgood or Jenkins had made such a petition to the district judge, and had alleged the concert and collusion as an objection to the act of bankruptcy. They would have been answered, that although this rendered the proceedings ineffectual, as against other creditors, yet that they, who were parties to the agreement, should not be permitted to allege the fraud.  * Of course, judgment would have been rendered in sup- [ * 218 ] port of the commission. Yet it could never be said to bind those other creditors, who, by the very terms of the proposition, are exempted from the operation of the rule. But if the judgment is conclusive in the case at bar, it must be so proprio vigore, from the mere fact that such a judgment was rendered without reference to the evidence, or any circumstances of that case; and if so, then a like judgment, rendered on a petition by Osgood, would be equally conclusive.
    The judgment referred to was founded on a petition made in pursuance of the fifty-second section of the statute, and by a creditor who had not proved his debt under the commission. It might be very well objected to such a petition, that an act of bankruptcy and commission, although defective in some particulars, were valid as against the bankrupt, if he did not resist them, and also against all creditors who voluntarily came in under the commission. And if they were not valid as against the petitioner, he might defend himself against the assignees, in any action, in which his interest should be involved. Whereas, if he succeeded in his petition, he would set aside a commission, which was satisfactory to all who were parties to it, and which the law declares to be valid and effectual as to all such parties, thus prejudicing others without benefiting himself.
    It is true that the act provides that such a judgment shall be final; but it does not declare it conclusive on third persons, or on all persons. The expression must refer only to the parties in that suit, and to the tribunal from which the appeal is made. In the fifty-sixth section, where the intention is to produce such an effect, the provision is, that in actions brought against debtors of the bank rupt, the commission, &c. shall be “ conclusive evidence” of certain facts; and such or much stronger language would have been used in the fifty-second section^ if it had been the intention of the legislature to make such a judgment conclusive on * all [ * 219 J the world. To give such a construction would be to violate one of the soundest principles of justice, which is adopted by the common law; that no man’s rights shall be affected by proceedings between other persons, with whom he has no concern, and over whom he has no control.
    
      Livermore contended,
    that here was a sufficient act of bankruptcy within the statute, by Bartlet’s “ keeping his house, so that he could not be taken, nor served with process,” when the officer went with the writ. As to the unreasonableness of the hour, none but the bankrupt himself could object this. But, in fact, it was not an unusual hour for the service of process ; nor was the bankrupt or his family in bed, but the door was shut for the very purpose of preventing the officer from executing the writ, and thus to delay his creditors.
    If Osgood had taken out the commission of bankruptcy, the facts would have been within the cases of Hooper vs. Smith, and Bamford vs. Baron & Al., which were cited by the defendant’s counsel. But here the petitioning creditor was not privy to the concert, and this brings the case directly within that of Tappenden vs. Burgess. 
      
    
    The defendant, having acquired his claim to the demanded premises, subsequent to the declaration of bankruptcy by the commissioners, has no right to contest the fact of an act of bankruptcy having been committed. That declaration must be considered as a judgment of a competent tribunal, as to all facts, incumbent upon them to examine and decide upon. (See § 1 and 3 of the U. S. Bankrupt law.) It is true, that in the English cases, a question is often made, whether an act of bankruptcy was committed on a particular day; but the practice of requiring proof of the bankruptcy at the trial must have arisen from the assignee’s attempting to prove an act some time prior to the commission, so as to overhaul a transaction of a bankrupt in favor of some creditor, or an execution executed.
    Doubtless, commissions have frequently issued upon concerted acts of bankruptcy; and as such acts have been [ * 220 ] * ruled to be sufficient to support the commission, as to all who chose to come in under it, if it had been conceived that the property assigned, under such a commission, could afterward be seized on execution, as the estate of the bankrupt, cases to this effect would be found in the books, of which, however, there are none. If the defendant’s reasoning, respecting concerted acts of bankruptcy, is correct, the estate of the bankrupt, in whose, hands soever it may be, is still liable to the demands of such cred itors as may not come in, and may even be conveyed by the bank rupt; because the act of bankruptcy does not conclude third persons, not privy to the agreement. Even a payment to the assignee would be no discharge to the debtor. Such a doctrine would overset most commissions.
    But whether the fact can or cannot be contested in ordinary cases, it is not competent to the defendant in this instance to contest it; it having been settled by the judgment of the District Court, pursuant to the provision in the fifty-second section of the statute. This section provides that any creditor of the bankrupt, being dissatisfied with the determination of the commissioners, relative to any material fact in the commencement or progress of the proceedings, may petition the judge, setting forth such facts, and the determination thereon, and pray for a trial by jury; and judgment being entered on the verdict of the jury, shall be final on the said facts.
    
    The facts in the present case are precisely within the provision. A creditor of the bankrupt, viz. the Newburyport Insurance Company, dissatisfied with the determination of the commissioners, rela live to a material fact in the commencement of the proceedings, viz. their declaration that JBartlet had committed an act of bankruptcy, prior to the 24th day of September, 1802, petitioned the judge, traversing that fact; upon which issue was joined, a verdict found affirming the declaration of the commissioners, upon which judgment was rendered by the Court.
    The expression of the law is any creditor; and it is absurd * to say that such creditor must prove his debt [ *231 ] under the commission, to give him the right of petitioning, when the fact he means to contest is the bankruptcy of the party.
    But it is objected that the defendant was not a party to this judgment, and, therefore, is not bound by it. The answer is, that the judgment is like the decree of a Court of Admiralty, and in some instances of a Court of Chancery, and must, from the necessity of the case, conclude all parties. And all persons must be considered as party to the judgment, or the provision of the statute is worse than nugatory. Mischiefs of the most extreme kind would follow from a contrary construction.
    
      Jackson, in reply.
    It is said that none but the bankrupt can object, on account of the unreasonable hour, when the sheriff called with his writ. We say the objection may be made by any person interested. The question is, whether the trader, “ with intent unlawfully to delay or defraud his creditors, kept his house,” &c. Without such intent it is no act of bankruptcy Though he should afterwards collusively consent to have it considered an act of bankruptcy, his subsequent assent cannot alter the nature of the act so as to affect third persons. For if it were so, it would depend on the will of Bardlet, after the commission was taken out, either to defeat it, and leave the defendant’s execution to operate ; or by waiving this objection, to render the commission valid, and defeat the execution.
    It was further said by the plaintiff, that the petitioning crédita, not being privy to the collusion, the commission taken out by him is not affected by it; and for this the case of Tappenden vs. Burgess was cited. That case, taken in connection with Bamford vs. Baron fy Al., proves only that if a trader makes a conveyance, by deed, of all his effects to certain creditors, those creditors, who were parties to the transaction, shall not afterwards say it was a fraudulent conveyance, and so set it up as an act of bankruptcy But any creditor, not a party to the deed, may avail him- [ *222 ] self of the fraud, as an act of bankruptcy. There *is no analogy between that case and the present one. The making of such a deed is ipso facto an act of bankruptcy; but certain persons are estopped from saying so, because they shall not allege their own fraud, and derive an advantage from their own wrong. In the present case, the keeping house is not in itself an act of bankruptcy ; it wants the essential ingredient of the unlawful intention to defraud the creditor, and to prevent the service of the writ. As there is not, then, in fact, any act of bankruptcy, it is unimportant who petitions for the commission. The only apparent analogy between the two cases arises after the commission is taken out; then the bankrupt, if he submits to it, and all the creditors, who voluntarily come in, are estopped to say that the transaction, on which they relied to support the commission, was collusive and fraudulent. But a creditor, not a party to this collusion, and who has not assented to it by coming in under the commission, is not so estopped, and may accordingly prove the fraud, and avoid its operation on himself.
    T.f the declaration of the bankruptcy by the commissioners had, in any degree, the nature, force, or effect of a judgment, the bankrupt himself, who is a party to the supposed judgment, could not contest the fact of the bankruptcy. Yet the books are full of cases, in which the party charged does resist the commission ; and by actions of trover or trespass against the commissioners, the assignees, or their servants, disputes his having committed an act of bankruptcy ; and this question is tried in the usual mode, in the common law courts, without any reference to the decision of the commissioners.
    
      If the consequences apprehended by the plaintiff would follow from the principles advocated for the defendant, the argument from inconvenience would be very powerful; though perhaps not stronger than in some analogous cases. Thus, where an administrator is appointed, and a will is afterwards found and proved, the executor shall avoid all acts of the administrator.  It was even formerly held * that payment of a debt to such ad- [ * 223 ] ministrator was no discharge of the debtor. This last point has been since overruled;  but while it was believed to be law, the hardship of the case did not prevent the court from enforcing it.
    But the argument does not apply to the facts in this case. The defendant levied on the estate in question long before the assignment. He does not attempt to disturb any sales, receipts, or payments, made bond fide by the assignee, except so far as the defendant had, by a previous attachment, deprived the plaintiff of the possession of the thing, or given him notice of a claim, so that he might suspend any proceedings conflicting with it, until the right was determined.
    The principle for which we contend is the same that was adopted by this Court in the case of Taber’s insolvency.  That convey anee was good as to Taber, the insolvent person, and as to all the creditors who assented ; so is the assignment under this commission The conveyance there was fraudulent and void, as against all the creditors who did not assent to it; so, we contend, is the commission here. Though the Court in that case held the conveyance void, yet, in the suit against the assignees, as trustees of Taber. they were protected in every thing they had done pursuant to the assignment, before the commencement of Barker’s suit, and were held answerable only for the balance in their hands. But in the replevin of the ship, included in the assignment to them, and attach ed before they obtained the possession, the Court decided against the assignees.
    The action was continued nisi for advisement, and at the succeed ing March term in Suffolk, the opinion of the Court, except the chief justice, who did not sit in the case, was delivered by
    
      
       3 Mass. Rep. 511.
    
    
      
      
        Field vs Bellamy, Bul. N. P. 39. — Bramley vs. Mundee, Ibid.—Hooper vs Smith, 1 W. Black. 441. — Allan vs. Hartley, Cooke's B. L. 5. — Cawley & Al. vs Hopkins, Ibid. 81.— Stewart & Al. vs. Richman, 1 Esp. Rep. 108. — Roberts vs. Tisdale, Peake's N. P. Rep. 27.
    
    
      
      
        Cook. B. L. 74,100.
    
    
      
      
        Ex parte Hall, 1 Atk. 201.
    
    
      
      
        Fowler vs. Padget, 7 D. & E. 509.
    
    
      
      
        Garret & Al. vs. Moule, 5 D. & E. 575. — Barnard vs. Vaughan & Al., 8 D. &, E. 149.
    
    
      
       1 P. Will. 563.
    
    
      
       1 Bos & Pul. 369.
    
    
      
      
        Bamford vs. Baron & Al., 2 D. & E. 594, in notis.
      
    
    
      
       Bul. N. P. O
      
    
    
      
       4 East. 230.
    
    
      
      
        Bac. Abr. Executors, &c., F. 13.
    
    
      
       3 D. & E. 125.
    
    
      
       5 Mass. Rep. 144, Widgery & vs. Haskell.
      
    
   Sedgwick, J.

From the facts agreed between the parties it appears, that the land demanded was the property of Edmund Bartlet on the 25th of September, 1802; unless *it [ * 224 ] had before that time been lost by an act of bankruptcy committed by him; and that on that day an execution, which issued on a regular judgment, previously obtained by the present defendant against Bartlet, was duly levied upon it; and that the requirements of the law have been pursued in the return and registry of the execution; so that he has obtained a good title to the land, provided it belonged to Bartlet at the time of the levy. And it did belong to him, unless he had previously committed an act of bankruptcy, by which it was transferred to the demandant, as his assignee.

One day previous to the levy of the execution, on the 24th of September, 1802, a commission of bankruptcy was taken out against Bartlet. He was afterwards duly declared a bankrupt, and the demandant was appointed his assignee. If there was a good foundation for the issuing of the commission, in consequence of a previous act of bankruptcy, then, at the latest, on the 24th of September, and before the land was seized by virtue of the execution, Bartlet was divested of his property in it, and at the same instant, by relation, it became transferred to, and vested in the demandant. If, then, there be conclusive evidence that the commission was duly issued, it follows, of course, that the demandant must recover; and he insists that this Court is bound to consider the judgment of the District Court as such conclusive evidence.

The judgment of the District Court is founded on the 52d section of the statute, by which it is enacted, “ that it shall and may be lawful for any creditor of such bankrupt to attend all or any of the examinations of such bankrupt, and the allowance of the final certificate, if he shall think proper, and then and there to propose interrogatories, to be put by the judge or commissioners to the said bankrupt and others; and also to produce and examine witnesses and documents before such judge or commissioners, relative to the subject-matter before them. And in case either the [ * 225 ] bankrupt or creditor shall think him or herself * aggrieved by the determination of such judge or commissioners, relative to any material fact, in the commencement or progress of the said proceedings, or the allowance of the certificate aforesaid, it shall and may be lawful for either party to petition the said judge, setting forth such facts, and the determination thereon with the complaint of the party, and a prayer for trial by a jury to determine the same; and the said judge shall, in his discretion, make order thereon, and award a venire facias to the marshal of the district, returnable within fifteen days, before him, for the trial of the facts mentioned in the said petition, notice whereof shall be given to the commissioners and creditors concerned in the same ; at which time the said trial shall be had, unless, on good cause shown, the judge shall give further time ; and judgment being entered on the verdict of the jury, shall be final on the said facts; and the judge or commissioners shall proceed agreeably thereto.”

After issuing the commission, it was the duty of the commissioners to meet and proceed in the discharge of their duty. The first question to be determined by them, and which lays the foundation of all their subsequent proceedings, or whether they shall proceed at all, is, whether the person, against whom the commission has issued, has committed an act of bankruptcy ? At these meetings every creditor has a right to attend, “ to propose interrogatories,” and to take a part in every question, in which he is interested. As to the first question to be decided, whether an act of bankruptcy has been committed, the creditors may have different opinions of their interest, and some be in favor of, and others opposed to an affirmative declaration being made by the commissioners; and if any shall think himself “ aggrieved ” by it, a right of appeal, by a petition to the judge, is allowed him, and he is entitled to a trial by jury, to ascertain whether the determination was justly made or not. On such a verdict, and in conformity to it, it is the duty of the judge to enter up judgment, which * judgment, the act declares, shall be final [ * 22& j oil the facts put in issue, and that the judge or commissioners shall proceed agreeably thereto.

In this case, the commissioners having declared that Bartlet had committed an act of bankruptcy, the Newburyport Marine Insurance Company, who, it is agreed, were his creditors, being dissatisfied with that determination, availed themselves of the provision of the statute above cited, by instituting an appeal to the District Court. The proper issue was formed and tried. The verdict of the jury was against the petitioners, and established the fact that Bartlet was a bankrupt at the time of issuing the commission ; and of course validating the declaration of the commis sioners in this regard. On this verdict a judgment has been rendered. At that trial, not only the company, who were plaintiffs, might avail themselves of all the facts in their power, to substantiate their allegations, but, it is presumable, might also receive every aid, which could be afforded by any other creditor. In such a case, the consequences, which the act declares, shall follow such a judgment, that it shall be final on the facts put in issue, and that the judge or commissioners shall proceed accordingly,” seem very reasonable.

By this final decision, it is then rendered certain, that as early at least as the 24th of September, one day previous to the time when the defendant’s execution was levied, Bartlet had become a bankrupt. And it may be justly observed, that if the judgment of the District Court be final to any purpose whatever, so as to validate future proceedings under the commission; if to any purpose Bartlet had become a bankrupt, so as to authorize an assignment of his estate to the demandant, then upon the known contraction of the bankrupt laws, he was thereby stripped of all his property, and it became, at the same moment, by relation vested m the assignee. Whether the verdict of the jury in the District Court was founded upon the facts agreed upon in this [ * 227 ] case between the parties, or upon any other, * we do not think it important to decide or conjecture ; because we are perfectly satisfied that we cannot go behind the judgment of the Court founded upon that verdict.

And we do not think that the proceedings, provided for by the above-recited clause of the act, are confined to creditors, who, previous to preferring the petition, had come in and proved their debts under the commission; because the words any creditors include all creditors, as well those who have not, as those who have come in under the commission; and because creditors, before they come in under the commission, have as great an interest in many respects, and particularly in the question of the bankruptcy, as they who have come in. And besides, there seems to be but little propriety, even if it be competent for him to do it, for a creditor, who has come in under the commission, and made himself a party to the proceedings founded upon it, to deny afterwards that it properly issued.

The result of this opinion is, that the other facts, stated, and argued upon, are unimportant to a decision of this case ; we being all of opinion, that on the 25th of September, the day on which the execution was levied, the demanded premises were not the property of Bartlet, but had previously become the property of the demandant.

A contrary decision, we think, would be attended with the most pernicious consequences. While, on the one hand, it would be the duty of the assignee to dispose of the bankrupt’s effects, and to pay the proceeds of them in dividends to the creditors, who had come in under the commission ; the estate might be taken by other creditors, who had not come in, and the object of the commission be wholly defeated.

It is true that there are cases, not now necessary to be specified, jn which it is optional to certain descriptions of the creditors of a bankrupt, to prove their debts under a commission or not; and if they decline the bankruptcy, it is no bar to an action against the debtor. But, in all cases, where there is a valid as- [ * 228 ] signment by the commissioners, it * vests absolutely in the assignee, at the moment of the bankruptcy, all the effects of the bankrupt, on which there was not a previous lien.

In the case of Bamford vs. Baron, cited at the bar, it was determined that parties, who were privies, and had assented to a fraudulent deed of assignment, could not set it up as an act of bankruptcy. But this will not apply to the case under consideration, were we now to determine on the validity of the facts agreed in this case as an act of bankruptcy; inasmuch as neither the assignee, the demandant, nor the petitioning creditor, were parties, or in any manner privy to what is relied upon as a concerted act of bankruptcy. But, as has been already said, we cannot go behind the judgment, to consider those facts. In that case, there was nothing to assimilate it to this. There was no judgment of court founded upon a statute, by which certain facts were finally ascertained, and which facts were to regulate the future proceedings. And in the case of Tappenden & Al., Assignees, vs. Burgess, where the only question was upon the validity of the act of bankruptcy, and the right of the plaintiffs to insist upon it, the deed, which was the act of bankruptcy, was concerted with some of the creditors, and amongst others, three of the assignees, they being four in number, and the fourth being the petitioning creditor. It was held that it was no objection to an action, brought by them as assignees, for the recovery of part of the bankrupt’s estate, that some of them had concurred in such fraudulent deed set up as an act of bankruptcy ; for such estoppel applies not to the assignees, who are mere trustees for the creditors at large; but only to a petitioning creditor, who originates the commission.

But it is not our intention, as we deem it unnecessary, to detei mine further than that the judgment of the district court decides conclusively, that previously to issuing the commission, on the 24th of September, Bartlet had committed an act of bankruptcy; that from that time, at the latest, by the assignment of the commissioners, the demandant * thereby became entitled [ * 229 J to the demanded premises ; and, consequently, that the levying of the execution, by the defendant, on the 25th of that month, was a wrongful dispossession of the demandant, which entitles him to recover in this action.

Defendant defaulted,.  