less the record should make it evident not only that no case was exhibited for a preliminary injunction, but also that the bill could not be entertained for any purpose, when the Circuit Court of Appeals will determine the case on the merits and direct the Circuit Court to dismiss the bill. If, upon such an appeal, the point actually decided by the Circuit Court of Appeals is merely that the prima facie showing upon which the Circuit Court acted was such as to justify the Circuit Court of Appeals in saying that discretion had not been abused, the decree and mandate of the Circuit Court of Appeals will leave the Circuit Court at perfect liberty to enlarge, modify, or suspend its order as the future circumstances of the case may justify or the ends of justice require; but if the Circuit Court of Appeals pronounces a judgment on the merits of the case, and directs the Circuit Court to do what it originally ought to have done, its decree and mandate are final. Ib.

5. Where in a suit in equity brought for the infringement of a patent the decree of the Circuit Court determines the merits of the case upon pleadings, proofs, and exhibits, awards a perpetual injunction, and refers the cause to a master for the simple purpose of reporting damages for infringement, the decree is an interlocutory decree awarding an injunction within the meaning of section 7 of the act of March 3, 1891, but, though final as to the merits, it is not final for the purpose of appealing under the rulings of the Supreme Court as to what constitutes a final decree within the meaning of section 692 of the Revised Statutes. Upon an appeal from such a decree to a Circuit Court of Appeals there can be no proper review or reëxamination of so much of the decree as awards the injunction that does not include the basis upon which it was granted. The appeal necessarily brings up the full record and places the court in full possession of the entire case, so far at least as a remedy by injunction was the foundation of the jurisdiction of the Circuit Court. If, therefore, the Circuit Court of Appeals finds it essential to pass upon the merits of the case in order to determine the propriety of the injunction, and in no way reserves to the Circuit Court a right to review or reexamine the grounds upon which it originally proceeded, the decision of the Circuit Court of Appeals becomes the law of the case, and, if that decision is an affirmance of the decree of the Circuit Court, that decree becomes the decree of the Circuit Court of Appeals, and is no longer open to review, rehearing, or modification, for it has become the settled law of the case. Upon affirming such a decree the Circuit Court of Appeals is not called upon to determine the effect of the affirmance, should the case be again appealed after the accounting of profits and damages has been stated and confirmed. A second appeal, moreover, can only involve matters subsequent to the decree of the Circuit Court of Appeals, for that court, after the term has passed, has no power to review, rehear, or reëxamine its own decrees. Ib. 6. Attention is called to the fact that the decision of this court in Columbus Watch Company v. Robbins, 6 U. S. App. 275, is in conflict with the weight of authority in the Circuit Courts of Appeals in

other circuits, and is not in accord with the views now entertained by this court. So much of the opinion in that case as dealt with the question of the enlargement of jurisdiction by consent is approved, but so far as it 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 is disapproved. Ib. 7. In this case, which was a suit in equity for the infringement of a patent, the Circuit Court, after a hearing upon pleadings, proofs, and exhibits, made a decree by which it determined the validity of the patent sued on, found that the respondent had infringed, awarded a perpetual injunction absolutely restraining the respondent from making or selling the infringing machines, and referred the cause to a master for an accounting. From this decree the Circuit Court granted an appeal to this court with supersedeas, on a bond conditioned that the respondent should prosecute its appeal to effect and pay all costs and damages if it failed to make its plea good, as well as all damages and profits resulting from its manufacture or sale of the infringing machines after the date of the decree. This court, upon a full hearing, in which it was obliged to consider fully and determine both the question of the validity and meaning of the patent sued on, as well as the question of infringement, affirmed the decree awarding the injuction and remanded the case to the Circuit Court for further proceedings. After this affirmance the Circuit Court, upon the respondent's motion, entered an order modifying its former decree awarding a perpetual injunction, and in effect granting a license to the respondent to continue its infringement by authorizing it to complete the manufacture of machines the manufacture of which had been begun, and to sell to others to be sold or used machines already completed as well as those to be finished under the order. From this decree the complainant appealed. Held, (1) That the original decree of the Circuit Court awarding an injunction was an interlocutory decree awarding an injunction within the meaning of section 7 of the act of March 3, 1891, from which an appeal was, under the provisions of said section, allowable to this court; (2) that the Circuit Court was, under the provisions of the said section, vested with a discretion to grant an appeal from the said decree with supersedeas, which only operated to stay or suspend the injunction pending the appeal, and not as a license to the respondent to make and sell the infringing machines; (3) that the conclusion reached by this court in favor of an affirmance of the said decree was under the foregoing principles to be deemed binding and conclusive on the Circuit Court, the only duty devolving on which was to carry it out without modifying or varying it in any respect; (4) that the Circuit Court therefore had no power to make the decree appealed from herein, the effect of which was to dissolve the injunction pro tanto, and to grant the respondent a license to continue its infringement, and which was, therefore, an appealable interlocutory order or decree

within the act of February 18, 1895; and (5) that the suggestion that, as an appeal under the said section of the act of March 3, 1891, does not, unless specially ordered, operate as a stay of proceedings, this differentiates the proper practice thereunder from that observed by appellate courts under appeals which ipso facto suspend further steps under the decree appealed from, was without merit. Ib.

8. Where the only question raised upon the record before a Circuit Court of Appeals is a question of the jurisdiction of the court below, the appeal must be dismissed, because a Circuit Court of Appeals is not vested with jurisdiction to consider that question only, but where the record in the Circuit Court of Appeals presents questions other than that of the jurisdiction of the Circuit Court, and the case is one where the Circuit Court of Appeals cannot dispose of the case if it should disagree with the court below on the question of jurisdiction without proceeding to consider other questions raised by the record, an appeal or writ of error lies to the Circuit Court of Appeals, and that court must, ex necessitate, consider the question of jurisdiction in order that it may proceed to decide the other questions raised upon the merits. Coler v. Grainger County, 252.

See FINAL DECREE;

INJUNCTION, 1;

MOTION FOR A NEW TRIAL;
REPLEVIN BOND, 2.

APPLICATION OF PAYMENTS.

Where payments are made upon an open running account and the parties at the time make no application of such payments to the particular items of the account, the law will apply them to the oldest items of the account, and such payments will be applied to the head rather than to the foot of the account. Rickerson Roller Mill Company v. Farrell Foundry and Machine Company, 452.

See STOCK AND STOCKHOLDERS, 6.

ARBITRATION.

A Tennessee corporation claimed that an English corporation had unlawfully cut timber on its lands. The agent and general manager in Tennessee of the English company entered into an agreement with the Tennessee company that the matter in dispute should be submitted to arbitrators, and that the award should be final. The agent had no express authority to enter into this agreement. After the award, which was against the English company, had been made, the award itself, together with the agreement of submission and a statement of the circumstances of the case, were forwarded to the home office of the company in England. The directors sought to set off the award by the assertion of counterclaims, and agreed to pay the award provided they could recoup from certain persons to whom the English company had sold timber from its own lands, and who were supposed to be the real trespassers or beneficiaries of the trespass. Held, (1) That the company had the power to submit the controversy to

arbitration, or to authorize its agent in his discretion to do so; (2) that it was the duty of the company, upon its being apprised that its agent had made the submission, to disaffirm his act within a reasonable time, and notify the other company of its disapproval; (3) that if it failed to disaffirm the submission in a reasonable time a ratification of the agreement would be presumed; (4) that the assertion of counterclaims was not a disaffirmance, but was such conduct as justified a presumption that the company affirmed the submission; and (5) that the act of the agent in submitting the claim to arbitration was subsequently affirmed by the direction of the English company. Central Trust Company of New York v. Asheville Land Company, 1.

ASSIGNEE.

See PRIORITY OF PAYMENT;

RECEIVER, 1.

ASSIGNEE OF A CHOSE IN ACTION.

See JURISDICTION, B, 3, 4.

ASSIGNMENT.

The assignment of the right to the fruits of an illegal transaction, after the transaction has been closed, is not illegal, as the assignment would not be in furtherance of the illegal purpose of the original contract, and no public policy forbids a transfer of the unenforceable rights which may grow out of such a contract after the contract and its purpose are things of the past. In such a case there is a possibility that the person owing the illegal debt may not rely on the illegality as a defense, and, considering it a matter of honor, may pay it. This possibility makes the assignment of the claim a valuable consideration. Morris v. Norton's Administratrix, 739.

See JURISDICTION, B, 4;
VENDOR'S LIEN, 1.

ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
See CHATTEL MORTGAGE, 1.

ASSIGNMENT OF ERRORS.

1. The granting or refusal of a new trial is not subject to exception, and cannot be assigned as error. Postal Telegraph Cable Company v. Zopfi, 141.

2. Where no argument is addressed to a Circuit Court of Appeals in support of an assignment of error either on brief or in oral argument, it must be regarded as waived. Central Appalachian Company, Limited, v. Buchanan, 265.

3. A Circuit Court of Appeals will not consider questions which are not embraced in the assignment of errors.

VOL. XLIII-54

Ib.

4. Where requests to charge are sufficiently covered by the charge of the court as delivered, an assignment of error for refusal to charge as requested will not be entertained by a Circuit Court of Appeals. City of Findlay v. Pertz, 383.

5. The refusal of a trial court to grant a new trial because the weight of the evidence was against the verdict, or for any other reason, is not assignable as error in a Circuit Court of Appeals. Ib.

6. To assign as error merely that the trial judge refused to direct a verdict for the defendant at the close of the plaintiff's evidence is bad. Mount Adams and Eden Park Inclined Railway Company v. Lowry, 408.

7. If a defendant, after a trial judge has denied his motion for a verdict at the close of the plaintiff's evidence, introduces evidence in his own behalf, he thereby waives all right to assign error upon the action of the trial judge in denying his motion. Ib.

8. Where in an action against a street railway company to recover damages for personal injuries sustained through the alleged negligence of the railway company the railway company assigns as error that the trial judge denied its motion for a verdict at the close of all the evidence, if upon writ of error it shall appear that there was something more than a mere scintilla of evidence tending to show legal negligence upon the part of the railway company, - evidence so material and substantial that, if uncontradicted, it would in law justify a finding of negligence, then the assignment is bad, and the action of the trial judge in refusing to direct a verdict must be approved. Ib.

9. Where no exception is taken to any part of the charge of the court to the jury, there is no proper foundation for an assignment of error to any specific part of the charge. Farmers and Traders' National Bank of Covington, Kentucky, v. Greene, 446.

10. This court will not consider assignments of error to rulings upon evidence where no exceptions have been taken to such rulings; nor will an assignment of error to a portion of the charge be considered where the record expressly states that such portion is not excepted to. Illinois Central Railroad Company v. Ihlenberg, 726.

1. As attachments and executions may be levied on equitable interests