(106 U. S. 11)

BAYLY V. WASHINGTON AND LEE UNIVERSITY.

'November 6, 1882.)

FIDUCIARY OBLIGATIONS-ACCOUNTING BY BANKRUPT.

Whatever may be due by a person acting in a fiduciary capacity to the succession as executor, is not discharged by proceedings in bankruptcy, but he is left to account with the court, in such fiduciary character, as though no composition in bankruptcy had been made.

In Error to the Supreme Court of the State of Louisiana.
John H. Kennard and W. W. Howe, for plaintiff in error.
Henry J. Leavy, for defendant in error.

MILLER, J. In the second district court of the parish of Orleans, in the matter of the succession of R. H. Bayly, there was an opposition to the homologation of the account presented by George M. Bayly, executor of said R. H. Bayly, by the Washington and Lee University, which was a legatee under the will of the deceased. This opposition, so far as the case before us is concerned, was to an item of $18,021.79, which that court decided to be a debt from the firm of Bayly & Pond, the members of which had been declared bankrupt, and in regard to whom a resolution of composition by the creditors had been confirmed by the district court of the United States. The plaintiff in error here relied upon this composition as discharging him, both as executor of the estate of his brother and as a member of the partnership of Bayly & Pond, from liability for the item, and the inferior court, accepting this view of the matter, made an order that it should only be paid in due course of administration. On appeal of the Washington and Lee University, the supreme court of Louisiana decided that the item represented a debt by the executor of a fiduciary character, which was not barred by the composition order, and directed a judgment against Bayly in cash for the amount of it, to which judgment this writ of error is prosecuted.

The proposition argued here, namely, that a composition in a bankruptcy case, ratified by order of the district court, operates as a discharge of the bankrupt from all his debts, including those arising from fraud or growing out of a fiduciary relation, as well as others, was decided adversely by this court some two years after the present writ of error was sued out, in the case of Wilmot v. Mudge, 103 U. S. 217. It is there held that notwithstanding the comprehensive terms in which the act of 1874, in its seventeenth section, declares such a

composition to be binding, it was not intended to repeal section 5117 of the Revised Statutes, which enacts that "no debt created by fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy." This decision disposes of the only question in the record of which this court has jurisdiction. It decides that whatever may be due by plaintiff in error to the succession as executor is not discharged by the proceeding in bankruptcy, and he is left to account with the court in that character as though no composition in bankruptcy had been made. Whether in that accounting he was executor or not, and whether as such executor he had so dealt with the item in question as to be relieved of liability as executor or to be bound for it, are matters depending on the application of the law of Louisiana to the facts of the case, and involve no question under the bankrupt law.

The judgment of the supreme court of Louisiana is affirmed.

(106 U. S. 647)

THE STERLING and others v. PETERSON and others.

(November 6, 1882.)

COLLISION-APPORTIONMENT OF DAMAGES BETWEEN OFFENDING VESSELS.

In a suit in admiralty for damages for a collision caused by two vessels, where both vessels have been found in fault and the decree was entered against both vessels for the full amount of the loss, it should be modified so as to be against each severally for one-half of the entire damage and costs; any balance of each half which the libelant shall not be able to enforce against either vessel is to be paid by the other vessel or her stipulators.

Appeal from the Circuit Court of the United States for the District. of Louisiana.

J. Warren Coulston and William L. Putnam, for appellants.
Joseph P. Hornor and W. S. Benedict, for appellees.

WAITE, C. J. This was a suit in admiralty against the ship Sterling and tow-boat Equator, for damages sustained by the bark Sif in a collision. Both the ship and tow-boat were found to be in fault, and they were condemned in solido for the whole amount of the loss. From a decree to that effect this appeal was taken.

It is conceded that upon the facts found the owners of the Sif are entitled to a decree against the ship and the tow-boat, as both were

in fault. The well-established rule in such cases is to apportion the damages equally between the two offending vessels, the right being reserved to the libelant to collect the entire amount from either of them in case of the inability of the other to respond for her portion. The Washington and The Gregory, 9 Wall. 516; The Alabama and The Gamecock, 92 U. S. 695; The Virginia Ehrman and The Agnese, 97 U. S. 317; The City of Hartford and The Unit, Id. 323. As in this case the decree was against both vessels for the full amount of the loss, it should be modified so as to be against the Sterling and the Equator, and their respective stipulators, severally, each for onehalf of the entire damage and costs; any balance of such half which the libelant shall not be able to enforce against either vessel to be paid by the other vessel or her stipulators. As it does not appear from the record that the attention of the court below was called to this objection to the form of the decree, each party will be required to pay his own costs in this court.

The decree of the circuit court is reversed, and the cause remanded with instructions to enter a new decree in accordance with this opinion, adding interest to the date of such entry.

(106 U. S. 13)

CLARK and others v. WEEKS and others.

(November 6, 1882.)

COLLISION-TESTIMONY OF PART OWNER.

Where the findings of the circuit court show that the steamer was wholly in fault for its collision with a schooner, the exclusion by the commissioner of the testimony given in another suit by one of the part owners of the schooner as to the extent and value of the repairs was correct.

Appeal from the Circuit Court of the United States for the Southern District of New York.

John E. Parsons, for appellants.

Henry J. Scudder, for appellees.

FIELD, J. The findings of the circuit court, which are conclusive here, show that the steamer was wholly in fault for its collision with the schooner, and she was, therefore, justly condemned to pay all the damages inflicted.

The only question open for our consideration arises from the exception to the conclusion by the commissioner of the testimony given

rect.

in another suit by one of the part owners of the schooner as to the extent and value of its repairs. The exclusion, we think, was cor-. The statements of the part owner, expressing his judgment as to the matters upon which he was examined, could, at most, bind only himself. They were not evidence against his co-owners, who were merely tenants in common with him, not partners.

Part. § 453.

Decree affirmed.

Story,

(106 U. S. 605)

WEETH and another v. NEW ENGLAND MORTGAGE SECURITY CO.

(November 6, 1882.)

APPEAL ON CERTIFICATE OF DIVISION-JURISDICTION.

On an appeal on a certificate of division, the questions whether the notes sued on were usurious, and whether the master's report should in all things be affirmed, and the value of the matter in dispute was less than $5,000, the appeal was dismissed for want of jurisdiction, on the ground that questions certified must be of law and not of fact, and that this court cannot take jurisdiction where the whole cause is certified up for adjudication instead of single points.

Appeal from the Circuit Court of the United States for the District of Nebraska.

John M. Thurston, for appellants.

J. D. Campbell, for appellee.

WAITE, C. J. This case comes here by appeal on a certificate of division after a decree in accordance with the opinion of the presid ing judge, as required by section 650 of the Revised Statutes. The value of the matter in dispute is less than $5,000, and we have consequently no jurisdiction unless the questions certified are such as we can consider. The controversy is as to whether certain notes sued on are usurious. In the progress of the cause a reference was made to one of the masters of the court "to report on the law and the facts as shown by the pleadings and the proofs herein." The master reported, stating the facts he found and his conclusions of law thereon. To this report exceptions were filed by both parties, on the ground, among others, that the facts found and stated were not sustained by the evidence. Upon the hearing of the cause by the court the judges were divided in opinion on the following questions: (1) Whether the notes sued on were usurious. (2) Whether the master's report should in all things be affirmed. These are the questions certified to us.

The rule is well settled that to give us jurisdiction on a certificate of division of opinion, the questions certified must be of law and not of fact. Wilson v. Barnum, 8 How. 262; Dennistown v. Stewart, 18 How. 568; Silliman v. Hudson River Bridge Co. 1 Black, 584; Daniels v. Railroad Co. 3 Wall. 254; Brobst v. Brobst, 2 Wall. 96. cannot in this way be called on to consider the weight or effect of evidence. It is equally well settled that we cannot take jurisdiction where the whole case is certified up for adjudication instead of single points. U. S. v. Bailey, 9 Pet. 273; Nesmith v. Sheldon, 6 How. 43. The certificate in this case is manifestly subject to both these objections. The counsel for the appellants opens his argument with the candid statement that "the first question submitted depends on the solution and determination of the second, to-wit, whether the master's report should in all things be sustained?"-that is to say, whether the evidence supports the findings, and if it does, whether the master was right in his conclusions of law. This certainly presents the whole case for adjudication, and involves a finding of the facts by this court.

The appeal is dismissed for want of jurisdiction.

(106 U. S. 576)

ADAMS and another v. CRITTENDEN and another.

(November 6, 1882.)

APPEAL-JURISDICTION-MATTER IN DISPUTE.

Distinct decrees in favor of or against distinct parties cannot be joined to give this court jurisdiction on appeal.

If the value of the matter in dispute in such cases does not exceed $5,000, the mere fact that it arises under the constitution or laws of the United States, or treaties made, does not give jurisdiction on appeal.

Appeal from Circuit Court of the United States for the Northern District of Alabama.

James L. Pugh and W. K. McAllister, Jr., for appellants.

David P. Lewis, for appellees.

WAITE, C. J. This case was submitted under rule 20, but on looking into the record we find that we have no jurisdiction. The suit was begun in equity by an assignee in bankruptcy, and a purchaser of certain lands sold under an order of the bankrupt court, to restrain the defendant Crittenden from enforcing a decree in his favor against