
    Blythe and another against Johns.
    
      Chambersburg, Monday, Oct. 5.
    The certificate of a bankrupt’s conformity, is conclusive evidence of the trading and bankruptcy &c. as signees and a debtor of the bankrupt himself, but ill a suit by a creditor self, it is but dencetier a plea that creditor may wís not a trader meaning of the bankrupt law.
    IN ERROR.
    ERROR to the Common Pleas of Franklin county.
    . 1 he plaintiff below, Johns, brought an action of debt on two bonds, to which the defendants pleaded payment, with leave to give the special matter in evidence; and Blythe for himself pleaded, that he was a certificated bankrupt. The plaintiff replied to this plea, that Blythe was not a certificated bankrupt, and that the certificate was obtained unfairly and by fraud; upon which issue was joined.
    Upon the trial of the cause, the defendant, Blythe, having produced his certificate of conformity duly certified agreeably to the act of Congress, the plaintiff offered a witness to prove that Blythe had not, between the first day of June 1800, when the bankrupt act came into force, and the 7th of 1803, the date of the commission, been a trader within the meaning of the act of Congress, entitled “ an act to establish “an uniform system of bankruptcy throughout the United States.” This testimony was objected to by the defendant, but admitted by the Court, who sealed a bill of exceptions,
    The exception turned upon that part of the 34th section of the act of Congress, which provides, that in case a bankrupt be impleaded for, or on account of the debts specified in thai section, “ the certificate of such bankrupt’s conform- “ ing, and the allowance thereof, according to the directions “ of this act, shall be, and shall be allowed to be sufficient “ evidence, prima facie, of the party’s being a bankrupt “ within the meaning of this act, and of the commission, and “ other proceedings precedent to the obtaining such certifi- “ cate; and a verdict shall thereupon pass for the defendant,' “ unless the plaintiff in such action can prove the said certifi- “ cate was obtained unfairly and by fraud &c.” 5 U. S. Laws 69.
    The question was, whether it was only prima facie evidence of the trading also.
    
      Brown and J. Riddle argued for the plaintiffs in error.
    
      Duncan contra.
   Tilghman C. J.

This is an action of debt upon bond, brought by Johns the plaintiff below, against Blythe and Nicholson. Blythe pleaded that he had been discharged as a certificated bankrupt, under the act of Congress of the United States, and that the cause of action accrued previous to the time of his bankruptcy. The plaintiff replied that the certificate was unfairly obtained, and thereupon issue was joined. On the trial, the plaintiff offered evidence to prove that Blythe was not a trader within the meaning of the act of bankruptcy. This evidence was objected to, and admitted by the Court, to whose opinion the defendant took an exception; and the question now to be decided is, whether the certificate of the commissioners is conclusive evidence of the trading and bankruptcy? It is not a new: question, but has been well considered and determined in other courts, though not in this.

The act of Congress, so far as concerns this point, is substantially the same as the British statute of S Geo. 2. c. 30, and the former bankrupt law of this state. The thirty-fourth section of the act of Congress is thus expressed. [The Chief Justice here repeated the section.] It is very evident, that when a matter is allowed to be prima facie sufficient evidence, it is not intended to be con- elusive evidence. Such a construction would be a violation of the plain meaning of the words. Besides, where Congress meant the evidence to be conclusive, they have taken care to say so; for in the 56th section it is declared, that in all cases where the assignees shall prosecute any debtor of the bankrupt for any debt, the commission or a certified copy thereof, and the assignment of the commissioners of the bankrupt’s estate, shall be conclusive evidence of the issuing of the commission, and of the person named therein being a trader and bankrupt at the time mentioned therein. The reason why the proceedings were made conclusive evidence in one case and not in the other, is very obvious. In an action against a debtor of the bankrupt, it was of no importance to the debtor to whom he paid the money, provided the debt was due. It was very proper therefore to make the proceedings of the commissioners conclusive evidence in that case. But in an action by a creditor to recover a debt due from the bankrupt, it is of the utmost consequence to en-quire whether the defendant was really an object of the bankrupt law; for if'he was not, the plaintiff ought not to be barred from his recovery. In such cases it was right that the proceedings of the commissioners should be prima facie evidence, because it saved the trouble of summoning witnesses, who might live in remote places; and some credit was reasonably due to the acts and opinions of the commissioners, who must be supposed to be impartial and respectable judges, deciding upon evidence produced to them. The burthen of proof would be thus thrown where it ought to be, upon those persons who objected to the proceedings. Let us return then to the act of Congress, by which it is expressly permitted that evidence may be given of the certificate having been unfairly obtained. This is the very same expression used in the British and in the Pennsylvania statute. And the meaning of that expression was brought directly before the Court of Common Pleas, in the case of Pleasants v. Meng et al., 1 Dall. 380. That case was decided by Mr. President Shippen, who delivered a very able opinion. He held, that unfair was tantamount to illegal, because if a man had not been a trader, or had not committed an act of bankruptcy, it was unfair to grant him a certificate. This construction accords with the spirit of the act of Congress, because, when it is said, that the certificate shall be “prima facte evidence of the party’s being a bankrupt within the “ meaning of the act,” it must be understood that it is prima facie evidence of the trading, and all those other circumstances necessary to constitute a bankrupt. Of course, it being only prima facie evidence, it must be competent to the creditor who sues the bankrupt, to oppose this prima facie evidence, by other contradictory evidence. So that to make the whole provision in the 34th section consistent, the expression obtained unfairly, must be construed so as to permit the plaintiff to shew, that the person who obtained a certificate was not a trader, and consequently not a'bankrupt within the meaning of the act.

I am therefore of opinion, that the Court of Common Pleas were right in admitting the evidence, and that the judgment should be affirmed.

Yeates J.

I have heretofore, in the case of Rugan et al. assignees v. West, 1 Binn. 269., expressed my ideas pretty much at large, of the 51st section of the act of Congress of the 4th of April 1800, upon which the plaintiffs in error rely in this case. I shall therefore content myself with observing at present, that it became necessary by the provisions of a positive law, to declare that certified copies of the proceedings of commissioners of bankrupt, when finished and filed in the clerk’s office of the District Court, “ should be ad“mitted as evidence in all courts, in like manner as the “ copies of the proceedings of the said court are admitted “ in other cases.” At common law, they were inadmissible as against persons who were strangers to those proceedings. But there is nothing in this section, from which we can infer, that the facts set out in these proceedings are to be considered ais incontrovertibly true. Like other species of evidence, they may be contradicted or explained by other proofs, or repelled by circumstances. When the legislature intend that the commission and the assignment of the commissioners of the bankrupt’s estate, shall be conclusive evidence (in cases where the assignees shall prosecute any debtor of the bankrupt, for any debt) of the issuing the commission, and of the person named therein being a trader and bankrupt at the time mentioned therein, they say so in precise terms. Indeed, by the very words of the 34th section, all doubt seems to be removed in this instance. “ If a" “bankrupt shall be arrested, his certificate of conformity “and the allowance thereof, shall be.sufficient evidence, “ prima facie, of his being a bankrupt within the meaning of “the act.” The object of the legislature was to obviate the hardship to which the debtor would be subject, in procuring parol proof of his trading and conformity, in places far remote from his former residence; but not to conclude his creditors who were not parties to the proceedings. The same doctrine is uniformly asserted under the British statutes of bankruptcy, and by Mr. President Shippen in Pleasants v. Meng et al., 1 Dall. 380., under the former bankrupt law of this state. So also by Judge Washington in the case of M'Laws a bankrupt, as cited in 1 Binn. 268, on this act of Congress, upon proof that the whole was a matter of concert between the bankrupt and his friends. I am therefore of opinion, that the testimony offered by the plaintiff below, on the trial, to prove that Samuel Blythe had not been a trader between the 1st of June 1800, and the 7th of September 1803, was correct and legal, and that the judgment of the Court of Common Pleas be affirmed.

Brackenridge J.

A reference has been made in the argument to a case, Assignees of West v. West, tried before me at a Nisi Prius, Philadelphia, December 1807, in which a nonsuit was directed, on the score of the deposition of a certain Fisher not being admitted in evidence. The motion in bank was to set aside the nonsuit, and on the ground of the rejection of this testimony, it was set aside. The deposition was over-ruled on the ground of having been taken in the course of proceedings before the commissioners of bankruptcy, and fled, and not in the suit between the parties; and that it was not admissible, not having been taken on an examination between the parties, with the opportunity of a cross examination. It had no relation to the question of the trading &c., which in any case might be contested. What was laid down on these heads, was sanctioned by the Court above according to the opinion filed, which is not reported, but the substance only. So that it is not inconsistent with any thing ruled by me in that case, to concur with the opinion of the Court in this. On the contrary, it was ruled by me, that as between assignees and debtor the proceedings were conclusive; but as between creditor and debtor prima facie only. That was the case there; it is the same here.

Judgment affirmed.  