Opinion of the Court. although the court had decided that the complainant's bill could not be maintained. In the Seventh Circuit the practice seems unsettled. Electric Manufacturing Company v. Edison Electric Light Company, 18 U. S. App. 637, and Andrews v. National Foundry and Pipe Works, Limited, 18 U. S. App. 458, S. C. on petition for rehearing, 24 U. S. App. 81, 84, were both cases of appeal from preliminary injunctions. In the case last cited the court followed and applied the decision of United States Electric Lighting Company v. The Edison Electric Light Company (2), 11 U. S. App. 600. As this application was only for an affirmance of a preliminary injunction, it ought not to be regarded as a concurrence in the rule of the Second Circuit, where the appeal was from an injunction granted upon a determination of the full merits of the case. In the Ninth Circuit the rule of Richmond v. Atwood (2), supra, was adopted, and an affirmance of an interlocutory decree held to be final. Consolidated Piedmont Cable Company v. Pacific Cable Railway Company, 15 U. S. App. 216. In this circuit the case of Columbus Watch Company v. Robbins, 6 U. S. App. 275, is in conflict with the weight of authority in courts of coördinate jurisdiction, and is not in accord with the views now entertained by this court. So much of the opinion as deals with the question of the enlargement of jurisdiction by consent is eminently sound and meets our unqualified approval. So far, however, as the opinion proceeded upon the theory that this court, although it might be obliged to consider the entire merits of the case, could not authoritatively decide or determine any question pertaining to the merits, and should limit its decree to a mere ruling as to whether the injunction should be retained or dissolved, it does not meet the approval of the court. In overruling that case, a majority of the court who then constituted the court now concur, being a majority of the present court. When that case came on to be heard again (Columbus Watch Company v. Robbins, 22 U. S. App. 601, 634), this court found itself in possession of a full record and compelled to examine the entire merits of the cause, inasmuch as the injunction appealed Opinion of the Court. from had been granted only after a full determination of the merits upon all the evidence. This court then said: "The point was mooted whether we should examine the record as upon an appeal from a final decree or only examine the question whether the court below had exercised proper discretion in the issuing of an interlocutory injunction. It was decided that we could not hear and finally determine the merits of the controversy as to the validity of the patent and its infringement. Columbus Watch Company v. Robbins, 6 U. S. App. 275. In looking into the record, however, to determine whether the discretion of the Circuit Court was properly exercised, we have found ourselves obliged to consider the validity of the patent and its infringement, with the conclusion above stated. As the patent is valid, and as it was infringed by the defendants, the court necessarily exercised proper discretion in granting the injunction appealed from, and its decree is affirmed." It has been suggested that, inasmuch as an appeal under section 7 of the Courts of Appeals act does not, unless specially ordered, operate as a stay of proceedings, this differentiates the proper practice under this act from that observed by appellate courts under appeals which ipso facto suspend further steps under the decree appealed from. The fact that the appeal does not suspend proceedings under the decree appealed from, except at the discretion of the court allowing the appeal (In re Haberman Manufacturing Company, 147 U. S. 525), is not at all peculiar. The provision on that subject is precisely the rule of the House of Lords in force since 1807. The history of the practice in this respect is given very fully by Chancellor Walworth in Hart v. The Mayor, Aldermen, and Commonalty of Albany, 3 Paige, 380. From that case it appears that prior to 1772 an appeal from an interlocutory decree was held to suspend all further proceedings in the whole suit pending the appeal. But in that year the case of Earl of Pomfret v. Smith, 4 Bro. P. C. (2d Eng., Tomlin's, ed.) 700, was decided by Lord Chancellor Apsley, who decided that his jurisdiction was suspended only as to the matter appealed from. This was the state of the law when Opinion of the Court. these States separated from the mother country, and the rule stated by Lord Chancellor Apsley, in the case cited above, was adopted by the courts of New York. Green v. Winter, 1 Johns. Ch. 77; Messonier v. Kauman, 3 Johns. Ch. 66. The jurisdiction of the House of Lords as a court of appeals being finally established and acknowledged, they saw the necessity to prevent the delays and injustice incident to such a stay of proceedings without bond, and adopted in 1807 a general order or rule that the proceedings in the lower court upon such an appeal should not be stayed, but that it should be within the discretion of the chancellor to stay the proceedings or not, according to the circumstances. Burk v. Browne, 15 Vesey, 184; Hovey v. McDonald, 109 U. S. 150, 160; In re Haberman Manufacturing Company, Petitioner, 147 U. S. 525. The fact that section 7 of the Courts of Appeals Act has been so carefully framed upon the lines of the rule and practice of the House of Lords with respect to such appeals strengthens the view which we have taken with respect to the meaning of the statute and as to the proper authority and practice of this court thereunder. The conclusion which we have reached is in the line of the relief intended by Congress to be afforded to suitors whose rights are affected by temporary submission to an inconclusive decree. The right to appeal at that stage of the case is optional. If one affected by the action of the court in allowing, dissolving or continuing an injunction see fit, he may await a final decree and then appeal; but if he elects to appeal, with the result that another inconclusive decree is rendered, his last estate is no better than his first, for he must proceed with the cause and submit until he can again appeal. The statutory purpose was to save the litigants from being obliged to submit to the injury incident to an inconclusive decree and to all the expense of an accounting; but if after an appeal, resulting in an inconclusive affirmance, he must still proceed with an accounting, which after all may prove unnecessary, the statute will have amounted to little. The doctrine of res adjudicata rests upon the maxim that there should be an end to litigation. No doctrine rests upon Opinion of the Court. sounder principles of public policy, or is more entitled to a wide application. If, under an appeal from a decree awarding an injunction, this court obtains such a record as to enable it with justice to the parties to the appeal to hear and consider the merits of the cause, it would be most anomalous if we have not the power to decide them. The judicial function of considering involves the function of determining. The decision of an appellate court is final, and no second appeal is maintainable, except as to matters reserved, or proceedings subsequent to the first appeal. These considerations lead us to the conclusion that, inasmuch as it was decided upon the former appeal that the patent of the complainant was valid and that the defendant had infringed it, and a perpetual injunction had been properly awarded, there was no power in the Circuit Court to dissolve, modify or suspend the injunction. There was no room for the exercise of judicial discretion. The complainant was entitled to the remedy by injunction which had been accorded to him, and that relief had been affirmed by this court. The theory that the supersedeas allowed when the appeal was granted operated as a license to make and sell has no sound foundation. It did nothing more or less than to suspend the injunction pending the decree. There is, therefore, nothing in the suggestion that in justice the defendant should be allowed to complete what it had begun under license of the court. The condition of the bond affords no room for the idea of a license. The condition was a proper one, as a mere measure of damages in case the appellant failed to prosecute its appeal successfully. The decree dissolving the injunction will be Reversed, and the cause remanded, with directions to take such other and further proceedings as are not inconsistent with this opinion. Opinion of the Court. PENN MUTUAL LIFE INSURANCE COMPANY MECHANICS' SAVINGS BANK AND TRUST COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF TENNESSEE. No. 343. Submitted March 2, 1896. Decided April 14, 1896. A misrepresentation in bad faith within the meaning of the Pennsylvania act of June 23, 1885, Laws of 1885, p. 134, No. 101, is not an untrue statement made in the honest belief that it is true, even if the honest ignorance of the truth is the result of the grossest carelessness, but is a statement made with actual intent to mislead or deceive another; in other words, the statute does not mean constructive bad faith, but the same actual intent to mislead that must be found in convicting one of the crime of false pretenses. An honest belief in the misstatement through forgetfulness and inadvertence is therefore a defense to such a charge. The decision of this court in the case of Penn Mutual Life Insurance Company v. Mechanics' Savings Bank and Trust Company, 37 U. S. App. 692, adhered to, and a petition for a rehearing of the case denied. Before TAFT and LURTON, Circuit Judges, and HAMMOND, District Judge. On petition of the Penn Mutual Life Insurance Company for a rehearing of the case of Penn Mutual Life Insurance Company v. Mechanics' Savings Bank and Trust Company, 37 U. S. App. 692. The grounds of the petition are stated in the opinion of the court. Mr. F. C. Maury and Mr. John B. Daniel in support of the petition. TAFT, Circuit Judge, delivered the opinion of the court. This is a petition for a rehearing by the Penn Mutual Life Insurance Company, the plaintiff in error. The action below was on a policy of life insurance, and resulted in a verdict and |