Opinion of the Court.

MR. JUSTICE GRAY delivered the opinion of the court.

The claim of each plaintiff being for less than $5000, the amount in dispute, as was admitted at the bar, is insufficient of itself to give this court jurisdiction. Stewart v. Dunham, 115 U. S. 61; Gibson v. Shufeldt, 122 U. S. 27.

The jurisdiction of this case therefore depends upon the statutes which provide that when, on the trial or hearing of any civil suit or proceeding before the Circuit Court held by the Circuit Judge and the District Judge, or by either of them and a Justice of this court, any question occurs upon which the opinions of the judges are opposed, the opinion of the presiding judge shall prevail and be considered as the opinion of the court for the time being; "the point upon which they so disagreed shall, during the same term, be stated under the direction of the judges, and certified, and such certificate shall be entered of record;" and the final judgment or decree "may be reviewed, and affirmed or reversed or modified, by the Supreme Court, on writ of error or appeal." Rev. Stat. $$ 650, 652, 693.

Under these statutes, and the earlier ones authorizing questions upon which two judges of the Circuit Court were divided in opinion to be certified to this court, it has been established by repeated decisions that each question so certified must be a distinct point or proposition of law, clearly stated, so that it can be definitely answered, without regard to other issues of law or of fact in the case.

The points certified must be questions of law only, and not questions of fact, or of mixed law and fact-"not such as involve or imply conclusions or judgment by the court upon the weight or effect of testimony or facts adduced in the cause." Dennistoun v. Stewart, 18 How. 565, 568; Wilson v. Barnum, 8 How. 258; Silliman v. Hudson River Bridge Co., 1 Black, 582; Daniels v. Railroad Co., 3 Wall. 250; Brobst v. Brobst, 4 Wall. 2; Weeth v. New England Mortgage Co., 106 U. S. 605; California Paving Co. v. Molitor, 113 U. S. 609; Waterville v. Van Slyke, 116 U. S. 699; Williamsport Bank v. Knapp, 119 U. S. 357. The question of fraud or no

Opinion of the Court.

fraud is one necessarily compounded of fact and of law, and the fact must be distinctly found before this court can decide the law upon a certificate of division of opinion. Ogilvie v. Knox Ins. Co., 18 How. 577, 581; United States v. City Bank, 19 How. 385; Havemeyer v. Iowa County, 3 Wall. 294; Watson v. Taylor, 21 Wall. 378.

The whole case, even when its decision turns upon matter of law only, cannot be sent up by certificate of division. Saunders v. Gould, 4 Pet. 392; United States v. Bailey, 9 Pet. 267; Harris v. Elliott, 10 Pet. 25; White v. Turk, 12 Pet. 238; United States v. Briggs, 5 How. 208; Sadler v. Hoover, 7 How. 646; United States v. Northway, 120 U. S. 327; State Bank v. St. Louis Co., 122 U. S. 21. Nor can a splitting up of the whole case into the form of several questions enable the court to take jurisdiction. White v. Turk, above cited; Nesmith v. Sheldon, 6 How. 41; Luther v. Borden, 7 How. 1, 47; Webster v. Cooper, 10 How. 54.

In Webster v. Cooper, decided at December term, 1850, it appearing by the record that the whole case had been divided into points and sent up to this court, and that several of the latter points could not have arisen until the previous ones had been first decided, this court declined to take jurisdiction, and Chief Justice Taney said: "This court has frequently said that this practice is irregular, and would, if sanctioned, convert this court into one of original jurisdiction in questions of law, instead of being, as the Constitution intended it to be, an appellate court to revise the decisions of inferior tribunals. Indeed, it would impose upon it the duty of deciding in the first instance, not only the questions of law which properly belonged to the case, but also questions merely hypothetical and speculative, which might or might not arise as previous questions were ruled the one way or the other." 10 How. 55. As the Chief Justice there observed, in some earlier instances, questions irregularly certified had been acted upon and decided. But the later decisions already referred to show that this court has since been careful not to exceed its lawful jurisdiction in this class of cases; and that under the existing statutes, as under those which preceded them, whenever the

VOL. CXXIII-28

Opinion of the Court.

jurisdiction of this court depends upon a certificate of division of opinion, and the questions certified are not such as this court is authorized to answer, the case must be dismissed.

In the present case, general creditors of Knight seek to set aside, as fraudulent against them, a warrant of attorney to confess judgment, executed by Knight to secure the payment of money lent to him in good faith by his wife and his bankers, and a subsequent sale of his stock of goods to satisfy those debts.

The statement (embodied in the certificate and occupying three closely printed pages in the record) of what the judges below call "the facts found" is in truth a narrative in detail of various circumstances as to the debtor's pecuniary condition, his dealings with the parties to this suit and with other persons, and the extent of the preferred creditors' knowledge of his condition and dealings. It is not a statement of ultimate facts, leaving nothing but a conclusion of law to be drawn; but it is a statement of particular facts, in the nature of matters of evidence, upon which no decision can be made without inferring a fact which is not found.

The main issue in the case, upon which its decision must turn, and which the certificate attempts in various forms to refer to the determination of this court, is whether the sale of goods was fraudulent as against the plaintiffs. That is not a pure question of law, but a question either of fact or of mixed law and fact.

In the absence of any bankrupt or insolvent law, a debtor may lawfully give a preference to one of his creditors, if he does not thereby intend to defraud the others; and a sale and delivery of goods in satisfaction of an honest debt cannot be avoided by other creditors, unless made and received with intent in fact to defraud them. This is well settled by the decis ions of this court, as well as by those of the highest court of the State of Indiana, where these transactions took place. Buckingham v. McLean, 13 How. 151, 167; Warner v. Norton, 20 How. 448; Robinson v. Elliott, 22 Wall. 513, 520; Medsker v. Bonebrake, 108 U. S. 66; Stewart v. Dunham, 115 U. S. 61; Jones v. Simpson, 116 U. S. 609; People's Savings

Opinion of the Court.

Bank v. Bates, 120 U. S. 556; Huiskamp v. Moline Wagon Co., 121 U. S. 310, 319; Pence v. Croan, 51 Indiana, 336; Leasure v. Coburn, 57 Indiana, 274; Willis v. Thompson, 93 Indiana, 62. The fact that one of the creditors preferred was the debtor's wife does not affect the question. Magniac v. Thompson, 7 Pet. 348; Bean v. Patterson, 122 U. S. 496.

Many of the cases cited in the learned arguments at the bar were of voluntary conveyances, or arose under a bankrupt act, or presented the question whether there was sufficient evidence of fraudulent intent to be submitted to a jury, or were decided by a court authorized to pass upon the facts as well as the law, and therefore have no direct or important bearing upon this case.

Not one of the questions certified presents a distinct point of law; and each of them, either in express terms or by necessary implication, involves in its decision a consideration of all the circumstances of the case. The first question, whether the six weeks' delay in taking judgment upon the warrant of attorney made the subsequent sale voidable by the plaintiffs, as well as the second question, whether evidence of the debtor's fraudulent intent and of the preferred creditors' knowledge of that intent was requisite to render "said sale" void as against the plaintiffs, could not be determined except upon a view of all the attendant circumstances. The third question, whether "such sale," if fraudulent, would be voidable in favor of the whole or of part only of the plaintiffs' debts, could not arise until the sale had been decided to be fraudulent. The fourth and fifth questions frankly submit in two subdivisions the general question, whether "under the circumstances" the sale was fraudulent as against the plaintiffs.

As was recently said by this court, speaking of questions certified in similar form, "They are mixed propositions of law and fact, in regard to which the court cannot know precisely where the division of opinion arose on a question of law alone;" and "It is very clear that the whole case has been sent here for us to decide, with the aid of a few suggestions from the circuit judges of the difficulties they have found in doing so." Waterville v. Van Slyke, 116 U. S. 699, 704.

Statement of the Case.

Upon this record, therefore, this court cannot decide, either that the decree of the Circuit Court should be affirmed, or that it should be reversed or modified, but must order the

Appeal to be dismissed.

SMITH v. CRAFT.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA.

Argued November 4, 1887. - Decided December 5, 1887.

Whether an agreement to prefer a bona fide creditor is so fraudulent against other creditors, as to avoid a subsequent preference of the former, involves a question of fact, depending upon all the circumstances, and cannot be referred to this court by certificate of division of opinion. A bill of sale of a stock of goods in a shop, by way of preference of a bona fide creditor, is not rendered conclusively fraudulent, as matter of law, against other creditors, by containing a stipulation that the purchaser shall employ the debtor at a reasonable salary to wind up the business. Jewell v. Knight, ante, 426, followed.

BILL IN EQUITY by general creditors of Craft against him, Fletcher and Churchman. After a hearing upon pleadings and proofs before the Circuit Judge and the District Judge, the bill was dismissed, and they signed a certificate of division of opinion, the formal parts of which were like those of the certificate in Jewell v. Knight, ante, 426, and the rest of which was as follows:

"On April 5, 1879, William H. Craft, one of the defendants, was indebted to Fletcher and Churchman, under the firm name of S. A. Fletcher & Co., known as Fletcher's Bank, in about the sum of $33,000. He was also indebted to William Smith and others, the complainants, and other eastern creditors, in about the sum of $16,000. Craft had been for many years a dealer in watches and jewelry in the city of Indianapolis, and had enjoyed good credit, both at Indianapolis and in the eastern cities, among manufacturers and wholesale dealers. By an