1788.
incontrovertible or conclufive, evidence, but, in rendering it fufficient evidence of certain facts, which the Bankrupt was before under the neceffity of eftablifhing by fpecific proofs, it has merely transferved the burthen from him to the creditor, with whom it now lies to prove, according to the terms of our act of Affembly, that the certificate was unƒairly obtained.
That the certificate was unƒairly obtained, is, indeed, an expreffion attended with fome ambiguity ; but it muft have refpect to the fubject matter, which was the trading, bankruptcy, commiffion,&c. And, if a man had not been a trader, or, if he had not committed an act of bankruptcy, it was unƒairly to grant him a certificate:–So that unƒair is tantamount to illegal ; holding equally with the converfe of the propofition, that a certificate illegally muft be unƒairly, obtained.
If the Parliament of Engalnd intended to make fo effential a change in the bankrupt fyftem, as to leave the proceedings of the Commiffioners without controul,, or appeal, it would be ftrange that no ftronger, no clearer expreffion, was employed for that purpofe; and, if fuch was indeed their fenfe, it muft appear ftill more ftrange, that the Courts of Law have been fo far from underftanding it, that in every cafe fince the paffing of the ftatute, they have permitted the fame inveftigation which was before allowed. In Cowp. 823. it appears, that a Bankrupt, having obtained a certificate under a ʃecond Commiffion pending a former one, under which a certificate had been refufed, an application was made for an Exoneretur to be entered on the bail-piece; but the Judges pronounced the fecond commiffion to be abfolutely void, and difcharged the rule to fhew caufe. Now, if the certificate were conclufive, this decifion was illegal ; for, the certificate is as much evidence of the commiffion, as of the trading and bankruptcy; and its validity was a queftion equally before the Commiffioners, whofe fanction it had received.
It is clear, therefore, in every view, from the words of the law, and from judicial interpretations of its meaning, that the Legiflature has only made the certificate evidence; and the nature of evidence neceffarily implies an adverfe right to controvert and repel. A foreign judgment is allowed to be prima ƒacie evidence of a debt, and yet it was adjudged to be open to examination ; for, as I have already hinted, although fome kinds of evidence are ftronger than other kinds, yet, in that refpect, they are all placed on the fame footing. Doug. 1
But there is a general confideration, independent of the act of Affembly and the authorities; which is, that the matters determined by the Commiffioners are certainly matters of law, arifing from the facts ; as, what avocation conftitutes a trader, or what conduct amounts to an act of bankruptcy : Would it not then be a ftrained and unreafonable thing to fuppofe, that the Legiflature has eftablifhed a jurifdiction of this fort, competent to decide queftions of the greateft magnitude in their operation, and yet, that
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