WOODS, Circuit Judge,
after making the foregoing statement, delivered the opinion of the court.
The hill of exceptions having been stricken out, the point is made by the appellee that the “only question now raised upon the record is" that of the jurisdiction of the lower court,” and that “the writ of error should be dismissed for want of jurisdiction in this court to entertain it.” Manufacturing Co. v. Barber, 18 U. S. App. 476, 9 C. C. A. 79, 60 Fed. 465; Beck & Pauli Lithographing Co. v. Wacker & Birk Brewing & Malting Co., 46 U. S. App. 486, 22 C. C. A. 11, 76 Fed. 10, — are cited. This proposition assumes that, as the case stood before the bill of exceptions had been stricken out, the question of jurisdiction, in connection with other questions, was within the rightful cognizance of this court, and, if so, the power to decide it was not lost by passing upon or disposing of other questions first. A party against whom a judgment is rendered, instead of going to the supreme court upon a certificate of the question of jurisdiction alone, may take “the whole case” to the circuit court of appeals; and that court may then decide, or, if it deem proper, certify the question of jurisdiction to the supreme court. This was declared in McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, 35 L. Ed. 893, and reaffirmed in U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87, in an opinion from which we quote the following:
“Of course, tlie power to certify assumes tlie power to decide.” “Although the question of jurisdiction was not put in issue in the circuit court, still, as the objection in the circuit court of appeals went to jurisdiction over the subject-matter, no omission in that regard could supply absolute want of power, and the circuit court of appeals was bound to take notice of the question.” “It is conceded that the United States had assigned errors on the merits, as well as the error under consideration, and as the question of jurisdiction lay at the threshold,” etc.
Just what scope may be given to the phrase “upon the whole case,” as used by the supreme court in these cases, is uncertain. In the opinion of this court in Beck & Pauli Lithographing Co. v. Wacker & Birk Brewing & Malting Co., supra, it was said:
“It is clear, therefore, upon tlie weight, of authority, that a question of jurisdiction alone may not be taken to a court of appeals, though, on principle, once the supreme court liad enunciated the doctrine of ¡McLish v. Koi'f, it is difficult to see wliy such a question may not be entertained and decided by one of those courts as well when standing alone and constituting tlie whole case as when accompanied with another or other questions, which might tie injected on mere pretense, in order to obviate tlie objection to jurisdiction.”
In this case, as in U. S. v. Jahn, errors were assigned upon the merits; and this court, being bound to take notice of the question of jurisdiction, as one lying at the threshold, had power to dispose of1 it before c-oiisjclering the motion to suppress the hill of exceptions. Primarily, s± Pvm, the assignment of errors determines the scope of an appeal, and, i in any case errors other than the lack of jurisdiction in the love i1 eovrt are asserted, the “whole case” is before the court:, including ihe question of jurisdiction, if there be such qi‘‘¡ukuj, notwitln.it;¡>*¿Iipg it may be found on an examination that [668] for the lack of a proper bill of exceptions, or for failure to comply with the rules of practice, the other questions are not presented, or so imperfectly presented that the court might refuse to consider them. By rules 11 and 24 (31 C. C. A. cxlvi., clxvi., 90 Fed. cxlvi., clxvi.) this court, at its option, may notice errors, though not assigned or specified, and though the question be not. saved according to the strict rules of practice, if it be apparent of record that the point was contested, was not waived in the court below, and involved the merits of the case. Whether a bill of exceptions is properly in the record is not a primary question, but only an incident to the disposition of such alleged errors as the bill was designed to show. Under the rules the bill may or may not be indispensable, and whether it be so or not should not affect the power of the court over the question, whether the lower court had jurisdiction, because if that court was without jurisdiction the court of errors or appeals should so determine at the threshold, and, without entering upon any other question, remand the case for proper disposition below. It is, of course, true that every court must first determine its own jurisdiction, and, if it depends necessarily upon the question of the validity of a bill of exceptions in the record, that question, of course, must be determined as a part of the primary question; but the more reasonable and practicable course, indicated by the supreme court in U. S. v. Jahn, supra, is to look to the assignment of errors for the scope of the questions presented, and whether or not they can be disposed of because a bill of exceptions is lacking or may be suppressed, or for other technical reason, is not a question which must be answered before the court can consider whether the court below had jurisdiction of the case.
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WOODS, Circuit Judge,
after making the foregoing statement, delivered the opinion of the court.
The hill of exceptions having been stricken out, the point is made by the appellee that the “only question now raised upon the record is" that of the jurisdiction of the lower court,” and that “the writ of error should be dismissed for want of jurisdiction in this court to entertain it.” Manufacturing Co. v. Barber, 18 U. S. App. 476, 9 C. C. A. 79, 60 Fed. 465; Beck & Pauli Lithographing Co. v. Wacker & Birk Brewing & Malting Co., 46 U. S. App. 486, 22 C. C. A. 11, 76 Fed. 10, — are cited. This proposition assumes that, as the case stood before the bill of exceptions had been stricken out, the question of jurisdiction, in connection with other questions, was within the rightful cognizance of this court, and, if so, the power to decide it was not lost by passing upon or disposing of other questions first. A party against whom a judgment is rendered, instead of going to the supreme court upon a certificate of the question of jurisdiction alone, may take “the whole case” to the circuit court of appeals; and that court may then decide, or, if it deem proper, certify the question of jurisdiction to the supreme court. This was declared in McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, 35 L. Ed. 893, and reaffirmed in U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87, in an opinion from which we quote the following:
“Of course, tlie power to certify assumes tlie power to decide.” “Although the question of jurisdiction was not put in issue in the circuit court, still, as the objection in the circuit court of appeals went to jurisdiction over the subject-matter, no omission in that regard could supply absolute want of power, and the circuit court of appeals was bound to take notice of the question.” “It is conceded that the United States had assigned errors on the merits, as well as the error under consideration, and as the question of jurisdiction lay at the threshold,” etc.
Just what scope may be given to the phrase “upon the whole case,” as used by the supreme court in these cases, is uncertain. In the opinion of this court in Beck & Pauli Lithographing Co. v. Wacker & Birk Brewing & Malting Co., supra, it was said:
“It is clear, therefore, upon tlie weight, of authority, that a question of jurisdiction alone may not be taken to a court of appeals, though, on principle, once the supreme court liad enunciated the doctrine of ¡McLish v. Koi'f, it is difficult to see wliy such a question may not be entertained and decided by one of those courts as well when standing alone and constituting tlie whole case as when accompanied with another or other questions, which might tie injected on mere pretense, in order to obviate tlie objection to jurisdiction.”
In this case, as in U. S. v. Jahn, errors were assigned upon the merits; and this court, being bound to take notice of the question of jurisdiction, as one lying at the threshold, had power to dispose of1 it before c-oiisjclering the motion to suppress the hill of exceptions. Primarily, s± Pvm, the assignment of errors determines the scope of an appeal, and, i in any case errors other than the lack of jurisdiction in the love i1 eovrt are asserted, the “whole case” is before the court:, including ihe question of jurisdiction, if there be such qi‘‘¡ukuj, notwitln.it;¡>*¿Iipg it may be found on an examination that [668] for the lack of a proper bill of exceptions, or for failure to comply with the rules of practice, the other questions are not presented, or so imperfectly presented that the court might refuse to consider them. By rules 11 and 24 (31 C. C. A. cxlvi., clxvi., 90 Fed. cxlvi., clxvi.) this court, at its option, may notice errors, though not assigned or specified, and though the question be not. saved according to the strict rules of practice, if it be apparent of record that the point was contested, was not waived in the court below, and involved the merits of the case. Whether a bill of exceptions is properly in the record is not a primary question, but only an incident to the disposition of such alleged errors as the bill was designed to show. Under the rules the bill may or may not be indispensable, and whether it be so or not should not affect the power of the court over the question, whether the lower court had jurisdiction, because if that court was without jurisdiction the court of errors or appeals should so determine at the threshold, and, without entering upon any other question, remand the case for proper disposition below. It is, of course, true that every court must first determine its own jurisdiction, and, if it depends necessarily upon the question of the validity of a bill of exceptions in the record, that question, of course, must be determined as a part of the primary question; but the more reasonable and practicable course, indicated by the supreme court in U. S. v. Jahn, supra, is to look to the assignment of errors for the scope of the questions presented, and whether or not they can be disposed of because a bill of exceptions is lacking or may be suppressed, or for other technical reason, is not a question which must be answered before the court can consider whether the court below had jurisdiction of the case.
If, however, the case were to be considered as if there had been no bill of exceptions in the record, and the specifications of error dependent thereon were eliminated, the power of this court to consider the question of the jurisdiction below would still be clear, since, aside from that question, the sufficiency of the declaration to sustain the judgment, upon any theory of the nature of the cause of action, is disputed. The last specification of error is that the court erred in entering judgment for the plaintiff and against the defendant. An assignment so general as this the court may refuse to consider, but is not bound to do so. See World’s Columbian Exposition Co. v. Republic of France, 33 C. C. A. 333, 91 Fed. 64. As was there said, “It is fundamental that a judgment cannot stand unless the facts of record, apart from any showing by the bill of exceptions, aided as far as may be by the verdict, will support it;” and, if the lack of essential facts be plain, this court, in accordance with rule 11, may take cognizance of the error, though it be not well assigned. It cannot be said in this case that, besides the question of jurisdiction of the court over the parties and the subject-matter, there does not arise the question of the sufficiency of facts of recpitfU") support the judgment rendered. To illustrate: It is pointed (3ut that the declaration contains no averment of ownership of thg patents referred to at and during the time covered by the transactions out of which Che right of action is supposed to have arisen. .It may be, as insisted, that in that and other particulars the verdict-has cured whatever de[669] feet there was in the declaration; but to say that is only to_ demonstrate the presence of the question, and to refute the objection that this court is without power to proceed further in. the case. If the court below had jurisdiction, it was confessedly not because^ of diverse citizenship of the parties, but because the action was for the infringement of patents for inventions. Judged by its averments, however, the declaration was drawn upon the theory of enforcing, or of recovering damages for the breach of, rights, duties, and obligations arising out of contract, rather than to recover for the infringement of letters patent. It begins, it is true, by professing to be a plea of trespass upon the case, and ends by asserting a right by force of the statutes of the United States to recover the actual damages alleged, and such additional amount as the court should see fit to allow, not exceeding three times the amount of actual damages; but such a beginning and ending can amount to nothing unless in the body of the pleading it is shown by proper averment that the plaintiff is entitled to recover of the defendant damages for infringement of a patent right. That does not appear in this declaration. It is shown that at a date more than three years prior to the-bringing of this suit, and two years or more before the transactions out of which the supposed cause of action arose, the plaintiff wms the owner of, and gave the defendant the right to use within resiricted limits, a large number of patented inventions; and it is charged that after two years’ compliance the plaintiff in error, in violation of the contract of license, modified the article, which it was authorized to make only according to a pattern agreed upon, so as to include other elements, but it is not alleged that in so doing the defendant infringed any patent right then or theretofore owned by the plaintiff. It is alleged that the defendant manufactured and sold 4,500 incubators which in specified particulars differed from the sample, 2,000 others that differed in certain other respects, 2,000 others that differed as stated, and finally 2,000 others were so modified as to include a certain heat-regulating device, which it is alleged “was and is embraced under and covered by the claims and specifications of letters patent of the United íátates set out and described in said contract of license secondly hereinafter [before] set forth as No. 230,086, July 13, 1880; the same being particularly described in the claims of said patent No. 5 and 6.” If the last averment stood alone, constituting the entire gravamen of the declaration, it might possibly be regarded as an attempt to allege infringement of the particular patent mentioned, though it falls far short of the usual and of some of the necessary averments employed for that purpose; but, taken in connection with the other allegations, which are more important, inasmuch as they cover 9,500 articles, while this includes only 2,000, it cannot fairly be treated as intended to proceed on a basis different from and inconsistent with the theory of the other and more substantial averments. There is no allegation of damages on the theory of infringement, and no basis furnished for estimating damages, except the stipulated license fees, which it is alleged the defendant “has never paid and has continually refused to pay.” The plaintiff had no right in the same suit; though in the form of trespass on the [670] case, to seek a recovery of damages for breach of contract and for infringement of patent rights. The gravamen of this declaration is beyond question in the allegations of breach of contract, and, if good at all, it is good only for that purpose. If its defects are to be considered as cured by the verdict, it must be in the direction of its main design, and not in the direction of a minor averment, which, if amplified as proposed, would introduce an inconsistent cause of action.
The judgment below is reversed, and the cause remanded, with direction to dismiss the action, unless, on such terms in respect to costs as the court shall determine, leave shall be given for a further amendment of the declaration.