The United States v. Eckford's Executors. separate, in regard to the sureties, as if different persons had served in the three terms specified; that the legal responsibilities of the sureties are not and cannot be affected by any action of the Treasury Department. If liable, the sureties are made so by their contract; and the government, being a party to that contract, cannot, without the consent of the defendants, change its legal or equitable effect. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of New York, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, 1st, That the transcript from the books and proceedings of the Treasury, given in evidence on the part of the United States, to show the indebtedness of Samuel Swartwout on the 28th day of March, 1834, on which day the second term of office of said Swartwout expired, was, in this case, competent and legal evidence. 2d, That the payments made by said Samuel Swartwout subsequently to the said 28th day of March, 1834, should be appropriated in discharge of his indebtedness on that day, so far as said payments were made, in the subsequent term, of moneys received on duty bonds or otherwise, which remained charged to the collector as of the preceding official term; but not where such payments were made of moneys accruing and received in the subsequent term. Whereupon it is now here ordered and adjudged by this Court, that it be so certified to the said Circuit Court. WILLIAM NELSON, A PETITIONER IN BANKRUPTCY, v. DANIEL CARLAND, AN OPPOSING CREDITOR. Upon questions adjourned from the District to the Circuit Court under the "Act to establish a uniform system of bankruptcy throughout the United States," the district judge cannot sit as a member of the Circuit Court, and, consequently, the points adjourned cannot be brought before this court by a certificate of division. Nor will an appeal or writ of error lie from the decision of the Circuit Court; and it is conclusive upon the district judge. THE case came up on a certificate of division in opinion between the judges of the Circuit Court of the United States for the district of Kentucky. The facts are set forth in the opinion of the court. Mr. Chief Justice TANEY delivered the opinion of the court. In the case of William Nelson, petitioner in bankruptcy in the Kentucky district, against Daniel Carland, an opposing creditor, several points were adjourned by the District to the Circuit Court. Upon the hearing in the last-mentioned court, the district judge, as well as the justice of the Supreme Court, sat in the case; and being opposed in opinion upon the questions adjourned, they were certified to this court upon the motion of the counsel for the petitioner. The first question that presents itself upon this certificate is, whether the Supreme Court have jurisdiction in the matter in this form of proceeding. And after examining the printed argument filed by the counsel for the petitioner, and carefully considering the subject, the court are of opinion that the district judge cannot sit as a member of the Circuit Court, upon questions adjourned to that court, under the "Act to establish a uniform system of bankruptcy throughout the United States;" and that, consequently, the points adjourned cannot be brought before this court by a certificate of division. Nor will an appeal or writ of error lie from the decision of the Circuit Court; and it is conclusive upon the district judge. In delivering the opinion of the court, it is, however, proper for me to say, that I dissent from that part of it which excludes VOL. I.-34 Ꮓ Nelson v. Carland. the district judge from sitting as a member of the Circuit Court in a case of this description. Yet I concur in the judgment dismissing these proceedings; being of opinion that the act of Congress of 1802, authorizing the certificate of division where the judges of the Circuit Court are opposed in opinion, does not apply to the peculiar and summary jurisdiction directed to be exercised in cases of bankruptcy. The proceedings must therefore be dismissed for want of jurisdiction. Mr. Justice CATRON dissented. On a petition for a discharge, the district judge adjourned into the Circuit Court the question-Whether the act of 1841, establishing a uniform system of bankruptcy, was constitutional, or otherwise. The judges were divided in opinion on the question, and a certificate of division was made to the Supreme Court; calling upon this court to decide the question, and return it so decided, to be entered as the judgment of the Circuit Court. The district judge may adjourn into the Circuit Court any question, whether he has, or has not, doubts regarding its decision. Its importance is a sufficient reason. That he properly adjourned the question, whether the bankrupt law was or was not constitutional, is free from doubt. Of this question, the Circuit Court had full and proper jurisdiction; and the decision of it would have been conclusive of the case before us. Was it a "question" on which the judges could divide in opinion? The act of April 29, 1802, provides: "That whenever any question shall occur before a Circuit Court, upon which the opinion of the judges shall be opposed, the point upon which the disagreement shall happen, shall during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, at their next session to be held thereafter; and shall, by the said court, be finally decided. And the decision of the Supreme Court, and their order in the premises, shall be remitted to the Circuit Court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained Nelson v. Carland. shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits." The act declares, when any "question shall occur before the Circuit Court," &c., then, on a division, a certificate shall be made at the request of either party. No matter in what form of proceeding it occurs, be it at law or in equity; divisions are nearly as frequent in causes in equity as at law. Under the bankrupt law, the proceedings are in the form prescribed to courts of equity. Now, "did a question occur," in the Circuit Court? It must be admitted that one of the gravest occurred that could be presented to a court of justice: there it was to be decided, and the case concluded by its decision. The judges were opposed, and it could not be decided: then it was their duty, at the request of either party, to send it to this court, to decide for the Circuit Court; where the decision of the Supreme Court is to be entered as the judgment of the Circuit Court. So far the case presented, seems to be sufficiently clear: but it is met by another consideration; and that is, whether the Circuit Court, in a question adjourned under the 6th section of the bankrupt law, consists of the two judges, or of the circuit judge only. In all other cases, in the Circuit Courts of the United States, except in writs of error and appeals from the District Court to the Circuit Court, (an exception made by positive legislation;) the two judges have equal powers-they constitute the Circuit Court usually; and must do so when a division takes place does the bankrupt law cut off these powers of the district judge? The law does not so provide; and can it be justly inferred? If the district judge cannot be a men.ser of the court on, the hearing of the adjourned question, then no division of course can take place. To come at the inference of his exclusion, the intention of Congress must be ascertained from the whole scope of the act. It was to Great questions were involved in its construction. be administered by more than thirty judges, acting separately; no appeal to the Circuit Court was allowed, save in a single case: that of a refusal to finally discharge the bankrupt from his debts, (sec. 4;) and then the Circuit Court is commanded, if the bankrupt shall be found entitled to the benefits of the act, "to make a Nelson v. Carland. decree of discharge, and grant a certificate, as provided in this act." No appeal is allowed to this court from the decree of the Circuit Court: the creditor is not allowed an appeal, either from the District Court to the Circuit Court, or to the Supreme Court, in any case. Nor is the debtor allowed an appeal from the decree of the Circuit Court, refusing his discharge. Such is the unanimous opinion of my brethren now present; and with which opinion I concur. If the discharge is objected to by the creditors, and the District Court refuses it, the debtor may then demand a trial by jury, and try the matter over again: if the jury decides against him also, he may then appeal to the Circuit Court, and there elect to submit the matter a third time, either to the court, or to another jury; and this finding is conclusive, whether by the court or a jury. It is not possible, therefore, to reach this court by appeal, in a bankrupt case. This is clear; and my brethren think it equally clear, that no adjourned question can be brought here by a division of opinion: it follows, this court has no revising power over the numerous and conflicting constructions of the bankrupt law. In some circuits it is held, that one indebted "in consequence of a defalcation as a public officer; or as executor, or administrator, guardian, or trustee; or while acting in any other fiduciary capacity," can be discharged from all his other debts; and that the less favoured creditors may take all his property, unless the government, ward, &c., see proper to come in for distribution; when the fiduciary claim will also be extinguished. In other circuits, those indebted to any amount in a fiduciary capacity are all excluded as a class: the fact appearing on the face of the petition, it is dismissed of course. Such is the construction of the act in the eighth circuit; it has excluded from applying great numbers in the eighth and other circuits, who would have been admitted had they applied in circuits where the law is construed otherwise. This question also has been brought here by a division of opinion from the district of Kentucky, at the instance of the district and circuit judges, acting together as the Circuit Court; the question having been adjourned into that court by the district judge. In the case of William Nelson, the question occurred in the same court, whether the bankrupt law was unconstitutional and Jia, or otherwise. It was adjourned, as already stated, into the |