majority">Ye ates J.

The questions raised in this case depend chiefly on the true construction of the act of Congress of the 4th April 1800; the 51st section whereof is in these words: “ The said “ commissioners shall once in every year carefully file in the “ clerk’s office of the District Court all the proceedings had in “ every case before them, and which shall have been finished, “ including the commissions, examinations, dividends, entries, “ and other determinations of the said commissioners, in which “ office the final certificate of the bankrupt may also be recorded; all which proceedings shall remain of record in the said “ office, and certified copies thereof may be admitted as evi- “ dence in all courts, in like manner as the copies of the pro- “ ceedings of the said District Court are admitted in other “ cases.” And the 56th section runs thus: “ In all cases where “ the assignees shall prosecute any debtor of the bankrupt for “ any debt, duty or demand, the commission or a certified copy “ thereof and the assignment of the commissioners of the bank- “ rupt’s estate, shall be conclusive evidence of the issuing the “ commission, 'and of the person named therein being a trader “ and bankrupt at the time mentioned therein.”

I have no hesitation in declaring that this 56th section is not refin able to an action of trover and conversion. The words “ any debtor” exclude suits founded in tort, from the operation *270of the clause; and in the interpretation of a law, we are not at ~ liberty to drop any expressions made use of by the lawgivers. Besides, there is a solid ground of distinction between causes of action which arise ex contractu, and those which arise ex delicto. It is of no moment to the debtor whether the suit is instituted by his creditor originally, or by his assignees, or when the supposed act of bankruptcy was committed. His defence is precisely the same in both cases; and by the 13th section of the act a provision is introduced that “ where a debtor shall have bona “fide paid his debt to any bankrupt, without notice that such “ person was bankrupt, he or she shall not be liable to pay the u same to the assignees.” But in cases of persons claiming by from or under such bankrupt, adversely to the assignment, it is all important to them that they should be at liberty to contest at law the commission, trading, bankruptcy, and the time of the act of bankruptcy committed. To preclude such persons from -their full defence, and to conclude them by proceedings to which they neither were nor could be parties, would in my idea be a violation of the first principles of justice. Hence it is that by the 2d section of the act, it is directed that the petitioning creditors shall give bond, conditioned for the proving their debts, as well before the commissioners, as on atrial at law, in case the due issuing forth the commission shall be contested, and also for proving the party a bankrupt. And such has been the usage under the bankrupt laws of Great Britain, of the United States, and of this Commonwealth, and so it must have been necessarily determined in the case of MiLazvs the saddler, by Mr. Justice Washington, in the Circuit Court of the United States.

The 51st section is attended with more difficulty. The words “ zvhen finished'’'' may I think be fairly satisfied by the commissioners’ proceeding on the commission awarded, declaring that the party was a bankrupt on due examination and sufficient cause, examining the bankrupt and other witnesses, admitting the creditors to prove their debts, and assigning the estate and effects of the bankrupt to such person or persons as the major part in value of such creditors according to their several debts proved, should appoint.

It is declared by this clause that the proceedings shall remain of record in the office of the clerk of the District Court; and copies thereof shall be admitted in evidence in all courts, in like *271manner as the copies of the proceedings of the District Court are admitted in other cases.

On the part of the plaintiffs it has been contended, that the proceedings being declared matter of record, necessarily become evidence without other words; and being put on the same footing as the proceedings of the District Court in other cases, which has exclusive maritime jurisdiction and in the instances of their proceeding in rem, all the world are supposed to be parties, and to be concluded by the subject matter determined. The defend ant’s counsel have insisted that the clause must be construed strictly, as an innovation on the rules of evidence at common law; and that as the act assimilates the proceedings of the commissioners, considered as evidence, to judgments, the former can only be read in such cases where the judgments could be received in evidence; that judgments are not admissible in evidence except as between the parties and privies; and consequently as the defendant neither was nor could be a party to the proceedings before the commissioners, those proceedings were as to him res inter alios acta; and he could not be affected thereby in any shape.

The resolutions under the British acts of bankruptcy throw no light on the present question. They vary in point of expression from our statute, as far as relates to the subject under consideration. The statute of 5 G. 2. c. 30. s. 41. prescribes that “ a true copy of the record of such commissions, depositions, “ and proceedings, or other matters and things, shall and may “ upon all occasions be given in evidence, to prove such com- “ mission and the bankruptcy of such person, against whom “ such commission hath been or shall be awarded, or other “ matters or things, any law, usage, or custom to the contrary “ notwithstanding.” In Janson v. Wilson, Doug. 246. (257) the Court of B. R. were of opinion that the depositions of the act of bankruptcy when recorded, are evidence in an action at law to prove the precise time when the act of bankruptcy was committed, if specified therein. But it is said that it has not been determined whether the depositions may be contradicted. Cook. B. L. 562. 4 Ed.

I consider the bankrupt law as a system of policy devised by the legislature of the union for great national purposes; and accommodated to the circumstances and local situation of the United States. Many failures must necessarily take place in a *272country of so great extent, where commercial enterprise prevails in a high degree. It would be inconvenient in such a state of things, that in evexy case where a bankruptcy occurs, parol proof should be deemed absolutely necessary to be made of the trading and act of bankruptcy, however remote the trial might be from the scene of action. I adopt the language of Lord Mansfield in the case cited from Douglas, that “ the legisla- “ ture considered the commissioners as indifferent persons, “ examining the witnesses with impartiality, and taking care of ct the interest of all parties.” In the case of the death of any witness examined before them, his testimony is perpetuated. The law seems not to be confined to those who are or might be parties to the proceedings. Debtors of the bankrupt have no such opportunity of being made parties, nor have distant creditors; and yet with respect to both classes, it is admitted that the proceedings may be read in evidence. Besides, it strikes me forcibly, that if the 51st section is not considered to have a general operation on this and similar cases of adverse claims against the assignees, then it is wholly nugatory and superfluous; it can have no possible object. The 56th section makes the recoi'd of the commission conclusive evidence in the case of any debtors, and presupposes that a general provision had been made as to receiving such record in evidence. But by confining its conclusive effect to the cases of debtoi-s, it leaves other instances open to be decided on by a jury, on a fair comparison and contrast of all the testimony exhibited on the trial.

The result upon the whole then is, that the proceedings of the commissioners when l-ecorded should be received as prima facie evidence of the commission, trading, and act of bankruptcy, in the present instance; but that it is competent to the defendantto contest the same by other proofs; and that the deposition of Thomas Fisher who died since the examination should be received in evidence.

Smith J. and Brackenridge J. remaining of their former opinion, the judgment of the court was that the

Nonsuit be set aside.

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