As both parties have appealed and the decree below is sustained, the costs of this court must be equally divided between the parties. Whereupon the claimants appealed to this court.

6. The course of the steamer was about S. by | est on $14,026.92 from the date of that decree, W. W., and her speed eleven miles, or a little at the rate of 6 per cent per annum. more, an hour. This was full speed. About twenty minutes before the collision, her lookout was withdrawn from his station on the forecastle and set to work, with all the other men then on watch, washing decks. The second officer, whose watch it was, was with his men superintending their work. From the time the lookout was withdrawn, there was no one who could, in any respect, perform that duty except the man at the wheel, and he did not discover the schooner until his attention was called to her by the mate, at the time and in the manner hereinafter stated.

7. When the vessels were two or three miles apart, the steamer was discovered and duly reported by the lookout on the schooner. From that time she was closely watched. The schooner was kept steadily on her course until the steamer was not more than seven or eight hundred feet away, when, the danger of collision being imminent, the second mate who was on deck, gave an order to luff, and at the same time called out an alarm to the steamer; but before any material change in her course had been made the vessels came together.

Mr. John E. Parsons, for appellants.
Mr. Henry J. Scudder, for appellees

Mr. Justice Field delivered the opinion of the court:

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 upon the exception to 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 its repairs. The exclusion, we think, was correct. 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 coowners, who were merely tenants in common with him, not partners. Story, Part., sec. 453. Decree affirmed.

True_copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

8. The schooner was not seen at all from the steamer until the second mate, hearing the cry of alarm which came from her, stepped from where he was standing on the main deck to the starboard side, and saw her close upon him. He immediately ran up from the main deck into the wheel-house, where he ordered the wheel to port, at the same time assisting to port it over himself. The order to port aroused the captain who was in a room opening out of the wheel-house, and he, without stopping to put anything on, opened his door, and, seeing the schooner, rang the proper bells to slow and stop. Before the course of the steamer was materially changed by the porting of the wheel, or her headway was sensibly affected, she struck the schooner on the port bow, between the stern and the cat-head, and cut into her about WASHINGTON AND LEE UNIVERSITY. twenty feet on a line but slightly angling across the keel. The wound extended very nearly to the foremast, and to within four feet of the keel.

9. In a short time the steamer took the schooner in tow and carried her to the Delaware breakwater. From there she was taken by a tug to Philadelphia, where she was unloaded and her cargo taken on to New York. She was also put in repair and refitted at that port.

10. The account of damages, as stated by the commissioner in his report, is sustained by the evidence, except the item of $1,000 for damages to the starboard side. As to that, the evidence shows that when the repairs were completed, the vessel was in as good general condition as she was before the collision, and that if the bill of Bisely, Hillman & Streaker is paid in full without the deduction of $600 for increase of value, full compensation will be made for any injury to the starboard side.

Conclusions of Law.

1. That the collision was caused solely by the fault of The New Orleans in not keeping a sufficient lookout, and in not seeing the schooner in time to keep out of her way.

2. That the libelants are entitled to recover for the amount of the decree below, with interSee 16 OTTO. U. S., BOOK 27.

GEORGE M. BAYLY, Individually and as
Exr. of R. H. BAYLY, Deceased, Piff. in
Err.,

V.

(See S. C., 16 Otto, 11-13.)

Composition in bankruptcy-statute.

1. A composition in a bankruptcy case, ratified by order of the district court, does not operate as a disfraud or growing out of a fiduciary relation. charge of the bankrupt from debts arising from

2. Section 17 of the Act of June 22, 1874, ch. 390, which declares such a composition to be binding, does not repeal section 5117 of the Revised Statutes. [No. 10.]

Submitted Oct. 10, 1882. Decided Nov. 6, 1882.

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

THE SHIP STERLING, E. & A. SEWALL
ET AL., Owners, and the TOW-BOAT
EQUATOR, S. &. J. M. FLANNIGAN, Own-
ers, ET AL., Appts.,

v.

R. M. PETERSEN ET AL.

647, 648.)

firm of Bayly & Pond, the members of which had (See S. C., "The Sterling and The Equator," 16 Otto, 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 [XXVI., 536].

It is there held that, notwithstanding the comprehensive terms in which the Act of 1874 [18 Stat. at L., 182], in its 17th 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 jurisdic

tion.

Collision by two vessels—damages—costs on appeal.

1. Where the owners of a vessel are entitled to a decree against two other vessels for a collision, it should not be against both vessels for the full amount of the loss, but the damages should be apsels, the right being reserved to the libelant to colportioned equally between the two offending veslect the entire amount from either of them to the extent of her stipulated value, in case of the inability of the other to respond for her portion. 2. Where the attention of the court below was not called to an objection to the form of its decree, on account of which it is reversed here, each party will be required to pay his own costs in this court. [No. 49.] Decided Nov. 6, 1882.. Argued Oct. 24, 1882.

APPEAL from the Circuit Court of the United

States for the District of Louisiana. Court of the United States for the District of The libel in this case was filed in the District Louisiana, by the appellees, to recover damages resulting from a collision. The trial resulted in with costs. a decree in favor of the libelants for $8,265.35, This decree having been affirmed, on appeal, by the court below, at each of twotrials in said court, the owners appealed to this

court.

A further statement of the case appears in the opinion of the court.

Messrs. J. Warren Coulston, C. B. Singleton, R. H. Browne and William L. Putnam, for appellants.

S. Benedict, for appellees.
Messrs. Joseph P. Hornor and William

Mr. Chief Justice Waite delivered the opin-ion of the court:

This was a suit in admiralty against the ship. Sterling and tow-boat Equator, for damages the ship and tow-boat were found to be in sustained by the barque Sif, in a collision. Both It decides that whatever may be due by plaint- fault, and they were condemned in solido for iff in error to the succession as executor is not the whole amount of the loss. From a decree discharged by the proceeding in bankruptcy, to that effect, this appeal was taken. and he is left to account with the court in that It is conceded that, upon the facts found, the character, as though no composition in bank-owners of The Sif are entitled to a decree against ruptcy had been made. Whether in that ac- the ship and the tow-boat, as both were in fault. counting he was executor or not, and whether The well established rule in such cases is to apas such executor he had so dealt with the item portion the damages equally between the two in question as to be relieved of liability as ex-offending vessels, the right being reserved to ecutor 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 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 [76 U. S., XIX., 788]; The Alabama and The Gamecock,

The judgment of the Supreme Court of Louisi- 92 U. S., 695 [XXIII., 763]; The Virginia Ehrana is affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.S.

man and The Agnese, 97 U. S., 317 [XXIV., 893]; The City of Hartford and The Unit, 97 U. S., 323 [XXIV., 930]. As in this case the de

NOTE.-Collision; damages where two vessels are at fault for injury to a third. See, note to The City of Hartford v. Rideout, 97 U. S., XXIV., 930.

the other in a suit by the defendant, Weaver. The two suits presented substantially the same questions for adjudication, but they were in all other respects distinct. The two decrees were rendered on the same day, and draw interest from March 6, 1879. The circuit court, in the present suit, on the 24th of October, 1881, dismissed the bill, and from a decree to that effect this appeal was taken.

cree was against both vessels for the full amount | tuted by the defendant, Crittenden, alone, and of the loss, it should be modified so as to be against The Sterling and The Equator, and their respective stipulators, severally, each for one half 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.

True copy. Test:

The case comes clearly within the rule stated at the present Term in Ex parte R. R. Co. [ante., 78], to the effect that distinct decrees in favor of or against distinct parties cannot be joined to give this court jurisdiction, but if they could, these appellants would be in no better condition, because the aggregate of the two decrees, with interest added to the date of the dismissal of

James H. McKenney, Clerk, Sup. Court, U. S. the bill, is less than $5,000.

A. G. ADAMS, Trustee, AND C. C. HARRIS, Assignee in Bankruptcy of W. T. WEAVER, a Bankrupt, Appts.,

D.

THOMAS J. CRITTENDEN ET AL. (See S. C., 16 Otto, 576, 577.) Jurisdiction as to amount-federal question.

1. Distinct decrees, in favor of or against distinct parties, cannot be joined to give this court jurisdiction as to amount.

2. Except in certain cases, the mere fact that the matter in dispute arises under the Constitution or laws of the United States, or treaties made, does not give this court jurisdiction for the review of the Judgments or decrees of the circuit or district courts, If the value of the matter in dispute, exclusive of costs, does not exceed $5,000.

[No. 806.]

Submitted Oct. 26, 1882. Decided Nov. 6, 1882.

APPEAL from the Circuit Court of the United

bama.

States for the Northern District of Ala

If

The mere fact that the matter in dispute arises under the Constitution or laws of the us jurisdiction for the review of the judgments United States, or treaties made, does not give or decrees of the circuit or district courts. the value of the matter in dispute in such cases does not exceed $5,000, we cannot consider them any more than others in which the amount in value is less than our jurisdictional limit. Dismissed.

The history and facts of the case sufficiently
appear in the opinion of the court.
Messrs. William K. McAllister, Jr.,
James L. Pugh, and H. E. Jones, for appel-gle points.

lants.

This court has no jurisdiction on a certificate of division of opinion, unless the questions certified are of law and not of fact; nor where the whole case is certified up for adjudication, instead of sin[No. 887.]

Messrs. David P. Lewis and J. B. Moore, Submitted Oct. 26, 1882. Decided Nov. 6, 1882. for appellees.

Mr. Chief Justice Waite delivered the opin- APPEAL from the Circuit Court of the United

ion of the court:

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 the property for $1,828.93, and the defendant, Weaver, from enforcing another decree in her favor for $2,348.10. The decrees to be enjoined were entirely separate and distinct from each other, one having been rendered in a suit insti

NOTE-Jurisdiction of U. S. Supreme Court depends on amount; interest cannot be added to give Jurisdiction; how value of thing demanded may be shown; what cases reviewable without regard to sum in controversy. See, note to Gordon v. Ogden, 28 U. 8. (3 Pet.), 33.

States for the District of Nebraska. The history and facts of the case sufficiently appear in the opinion of the court.

Messrs. John M. Thurston and C. A. Baldwin, for appellants.

Messrs. J. D. Campbell and S. E. Brown, for appellee.

Mr. Chief Justice Waite delivered the opinion of the court:

This case comes here by appeal on a certificate of division after a decree in accordance with the opinion of the presiding 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 juris

NOTE.-Cases certified on division of Circuit Court; jurisdiction of U. S. Supreme Court in; on what division should be. See note to Webster v. Cooper, 51 U. S. (10 How.) 54.

diction unless the questions certified are such as we can consider.

a written instrument, he cannot be put to the proof of the execution of the instrument or the handwriting" of the opposite party, unless an affidavit is filed "denying the same." Held, that the want of such affidavit does not prevent the plaintiff from showing that such an instrument, dated January 2, was executed on Sunday, January 1. Held, also, that the want of such affidavit does not prevent the plaintiff from showing that his duplicate of an instrument executed in duplicate by him and the defendant differed in its contents from the one retained by the defendant.

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, 2. The quality of goods furnished at a given time on the ground, among others, that the facts by the plaintiff to the defendant being in question, found and stated were not sustained by the evi-ity of like articles furnished at the same time by it is competent for the plaintiff to show that the qualdence. Upon the hearing of the cause by the him to another party was good, if such evidence be court, the Judges were divided in opinion on the followed by evidence that the goods furnished by 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 [59 U. S., XV., 490]; Silliman v. Bridge Co., 1 Black, 584 [66 U.S., XVII., 84]; Daniels v. R. R. Co., 3 Wall., 254 [70 U. S., XVIII., 225]; Brobst v. Brobst, 4 Wall., 2 [71 U. S., XVIII., 387]. We 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. Bailey, 9 Pet., 273; Nesmith v. Sheldon, 6 How., 43.

him at that time to such other party and the goods furnished by him at that time to the defendant were of the same kind and quality.

3. Where the state of the evidence is such that there is no question for the jury as to a given matter, a charge and a refusal to charge in regard to such matter are not erroneous, because they work no injury to the party excepting.

4. A charge, that while the plaintiff could not recover for any more goods than his bill of particulars sets forth, he was not bound by a mistake in carrying out the rate or price, but could show what he was actually to have, it not appearing by the record what were the contents of the bill of particulars, but it appearing that the plaintiff claimed there was a mistake in it in that respect, held not to have been erroneous.

5. After this court has reversed a judgment and
ordered a new trial, and the new trial has been had,
with a second judgment,this court cannot, on a writ
of error to review the second judgment, review its
own judgment on the first writ of error.
[No. 68.]

Argued Nov. 1, 2, 1882. Decided Nov, 13, 1882.
ERROR to the Circuit Court of the United

The certificate in this case is manifestly sub-states for the Western District of Michigan.

ject 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.

The history and facts of the case fully appear in the opinion of the court.

Messrs. Michael J. Smiley, D. D. Hughes and T. J. O'Brien, for plaintiffs in error. Mr. Lyman D. Norris, for defendant in error.

Mr. Justice Blatchford delivered the opinion of the court:

The defendant in error brought this suit against the plaintiffs in error in July, 1872, in a court of the State of Michigan. It was removed True copy. Test: into the Circuit Court for the Western District James H. McKenney, Clerk, Sup. Court, U. S. of Michigan, in August, 1872, before the dec

OAKES A. AMES ET AL., Survivors of Themselves and OAKES AMES and OLIVER AMES, Deceased, Copartners, under the Firm Name of OLIVER AMES & SONS, Plffs. in Err.,

v.

ICHABOD L. QUIMBY

(See S. C., 16 Otto, 342-349.)

Michigan practice-proof of execution of instrument-evidence of quality of goods-charge to jury-second writ of error, practice on.

*1. A rule of court governing the pleadings and practice in Michigan provides, that where a defendant insists on a claim by way of set-off, founded on *Head notes by Mr. Justice BLATCHFORD.

NOTE-When a verdict may be directed by the court. See, note to Grand Chute v. Winegar, 82 U. S., XXI.,

174.

laration was filed. The action is assumpsit. The declaration claims $25,000 for goods sold and and received, and $15,000 for interest. The delivered, and a like amount for money had plea was non assumpsit with a notice of set-off to the amount of $25,000, and a notice that the goods alleged, to have been furnished by the plaintiff were furnished under a special contract that they were to be of first-class quality, and that they were not. A further notice under the plea, alleged that the goods furnished were furnished under three several contracts, made January 2, 1865, January 27, 1866, and December 25, 1866, for the furnishing by the plaintiff, to the defendants, of shovel handles; and that the plaintiff did not fulfill the contracts as to the quality of the handles. In April, 1875, the suit was tried by the court without a jury. On the findings of the court, a judgment was rendered for the plaintiff for $7,825.62. The defendants brought the case to this court by a writ of error, and the judgment was reversed and the cause was remanded to the circuit court, with