The claim of each plaintiff being for less than $5,000 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, 5 Sup. Ct. Rep. 1163; Gibson v. Shufeldt, 122 U.S. 27, 7 Sup. Ct. Rep. 1066. 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. St. §§ 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. Bridge Co., 1 Black, 582; Daniels v. Railroad Co., 3 Wall. 250; Brobst v. Brobst, 4 Wall. 2; Weeth v. Mortgage Co., 106 U.S. 605, 1 Sup. Ct. Rep. 91; Paving Co. v. Molitor, 113 U.S. 609, 5 Sup. Ct. Rep. 618; Waterville v. Van Slyke, 116 U.S. 699, 6 Sup. Ct. Rep. 622; Bank v. Knapp, 119 U.S. 357, 7 Sup. Ct. Rep. 274. The question of fraud or no 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. Insurance Co., 18 How. 577, 581; U.S. v. Bank, 19 How. 385; Havemeyer v. Iowa Co., 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; U.S. v. Bailey, 9 Pet. 267; Harris v. Elliott, 10 Pet. 25; White v. Turk, 12 Pet. 238; U.S. v. Briggs, 5 How. 208; Sadler v. Hoover, 7 How. 646; U.S. v. Northway, 120 U.S. 327, 7 Sup. Ct. Rep. 580; Bank v. St. Louis Co., 122 U.S. 21, 7 Sup. Ct. Rep. 1054. 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 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.