the defendant the New York Lumber Company was organized, with the expectation and hope that by a reorganization of the business, with additional capital, it might prove successful, and thus enable all the creditors, the complainant included, to make themselves whole in the future."

The New York Lumber Company was incorporated November 3, 1896, pursuant to an agreement between complainant and defendants Brown, Mayer, and Lynch. Brown was vice president and a director of the bank, and Mayer was an agent whom the bank had employed to make examination into the situation in Florida, and to collect its claims against its debtors. The stock of the company was to be apportioned among the parties to this agreement, and it was part of the plan that complainant's sawmill and plant was to be leased. and used by the new company in carrying on its business by converting into marketable lumber the cypress timber obtained from Paul. The bank from time to time advanced to the New York Lumber Company on its notes sums amounting in the aggregate to more than $35,000; nevertheless the enterprise turned out disastrously, and the Lumber Company failed, owing complainant for rent, insurance, damages to personal property, etc.

The Circuit Court thus epitomized the relief demanded in the complaint:

"First. That the defendants be adjudged and decreed to reassign to the complainant a judgment obtained by it against the Withlacoochee Lumber Company, and transferred to the defendants Brown, Mayer, and Lynch, September 29, 1896.

"Second. That an accounting be had between the complainant and defendants for rentals, taxes, and insurance due under the lease of the sawmill plant to the New York Lumber Company, and for damages occasioned by the improper care of the said plant.

"Third. That the defendant Brown, who, in consideration of an extension by the complainant of the time of payment of the rent due August 1st and the months following, agreed to pay $5,000 of the amount so extended on or before January 1, 1898, be adjudged and decreed to pay said amount and interest thereon.

"Fourth. That the defendant the Standard National Bank, 'by and through its said creature, said New York Lumber Company,' may be adjudged and decreed to convey to the complainant all interest which the said bank or lumber company have obtained or will obtain in the 15,000,000 feet of cypress timber agreed to be conveyed by said Paul.

"Fifth. That the defendants Brown, Mayer, and Lynch be 'decreed and directed to cause the said defendant Burrows to forthwith turn over to your orator the said $60,000 in stock so placed in his hands, as above stated.'"

The decree granted the relief prayed in the first and fifth of these paragraphs. As to the third it held that, assuming all complainant's contentions as to the facts to be true, it had an adequate remedy at law, and therefore refused relief in equity.

By the first three assignments appellant charges error (1) in refusing to find that the New York Lumber Company was in substance and effect the Standard National Bank acting under the disguise of the lumber company, and that complainant in making the agreement under which the new lumber company was organized really contracted with the bank through its authorized officers and agents, and not with the defendants Brown, Mayer, and Lynch as individuals; (2)

in holding the evidence fails to establish any agreement or obligation on the part of the bank which renders it liable to complainant; and (3) in finding that there is no agreement, oral or written, in the name of the bank.

The record is extremely voluminous, and contains a large amount of irrelevant matter. The fundamental question involved is one of fact, and nothing would be gained by a long rehearsal of the evidence. Suffice it to say that we concur with the Circuit Court in the conclusion that the New York Lumber Company was not the "Standard National Bank acting under the name and disguise of the lumber company," and that the bank did not, either directly or as undisclosed principal, enter into any contract to respond to complainant for the defaults of the lumber company. Brown was vice president and a director, Burrows was a director, and as such officers they were the agents of the bank to do what bank officers may properly do. Mayer was a special agent employed to collect the claims of the bank against the Snowden Company. Within the scope of their employment whatever was done by these agents would be binding upon their undisclosed principal, but there is nothing to show that the principal in this case ever employed them or either of them to embark the bank in the business of running a sawmill in Florida. The circumstance that, after the lumber company was started, the bank financed it by discounting its paper and loaning it money, is not persuasive, nor does it make any difference that the vice president promised in advance that he would make loans of the bank's funds for such purpose. Such a promise was highly improper, under all the circumstances, and the funds of the bank were most improvidently handled in the effort its officers made to get back money which their prior improvidence had sunk in a bankrupt enterprise; but the evidence falls far short of establishing any action by the bank which would make it directly responsible for the obligations of an independent corporation engaged in the lumber business.

The fourth assignment of error deals with a finding of the Circuit Court touching the application of the doctrine of ultra vires. That need not be considered; it would be idle to discuss whether a national banking corporation could or could not do something, when the proof tails to show that it did or even tried to do it.

Of the remaining errors assigned it is stated in the brief that, "while they are severally insisted upon, they do not seem to require separate consideration." There is no other reference to them; it will be sufficient therefore to state that, in our opinion, they do not present ground for reversal.

The decree is affirmed, with costs.

59 C.C.A.-37

(124 Fed. 64.)

WEBBER et al. v. MIHILLS et al.

(Circuit Court of Appeals, Eighth Circuit. July 9, 1903.)

No. 1,850.

1. ASSIGNMENT OF ERRORS-FILING BEFORE APPEAL INDISPENSABLE.

The filing of an assignment of errors before the allowance of an appeal is indispensable under the 11th rule of the Circuit Courts of Appeals (91 Fed. vi, 32 C. C. A. lxxxviii), and the appeal will be dismissed if the assignment is not filed before its allowance.

(Syllabus by the Court.)

Appeal from the District Court of the United States for the Western District of Arkansas.

This is an appeal from the decree of the District Court sitting in bankruptcy, which dismissed a petition of the appellants, George Webber, trustee of the Mammoth Pine Lumber Company, the bankrupt, and the South Texas National Bank, a creditor of the bankrupt, to review the allowance of the claim of the trustee and executors of the estate of M. T. Jones for the payment to them of a share of the proceeds of the sale of certain lands of the bankrupt upon which they held vendor's and mortgage liens. The trustee and the executors of the estate of Jones did not present or prove their claim against the estate of the bankrupt, but they filed an intervening petition setting up their claim to the proceeds of the sale of the lands upon which they held the vendor's and mortgage liens. This intervening petition was filed in the proceeding in bankruptcy against the Mammoth Pine Lumber Company on July 20, 1901. The claim which it presented was duly allowed after notice to the creditors and the trustee, and it was paid by the trustee on October 29, 1901. On August 21, 1902, the appellants appeared and filed a petition to review the allowance of this claim. The court denied and dismissed their petition on November 19, 1902, and on that day they prayed and were allowed an appeal to this court. On November 26, 1902, they filed the only assignment of errors which appears in the case.

L. A. Byrne, for appellants.

W. H. Arnold, for appellees.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The decree of allowance of the claim which the appellants sought to review in the District Court was rendered nearly a year before they filed their petition for that purpose, and there is no disclosure in this record of any accident or mistake which prevented an appeal from the order making that allowance or of any diligence in preparing for or prosecuting the petition for its review. The claim was paid, pursuant to the order of allowance, more than nine months before the petition was filed in the District Court, and these facts of themselves would be sufficient to prevent a reversal of the decree dismissing this petition, if that question was here for our consideration.

But the fact is that the merits of this case are not within our reach, because no assignment of errors was filed in the court below until more than six days after the appeal was allowed. Section 997 of the Revised Statutes [U. S. Comp. St. 1901, p. 712] makes an assignment. of errors, a prayer for reversal, and a citation to the adverse party

essential parts of the record upon which a review of the rulings of a trial court may be invoked in the appellate courts of the United States. When an appeal is prayed and allowed in open court the prayer for reversal and the citation may be waived. But the assignment of errors is indispensable to the perfection of the appeal. Rule II of this court provides that "the plaintiff in error or appellant shall file with the clerk of the court below, with his petition for the writ of error or appeal, an assignment of errors which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed." 91 Fed. vi, 32 C. C. A. lxxxviii. Attention has been sharply called to this rule, and the announcement has been plainly made that it would be enforced, although in the earlier cases the errors assigned were carefully examined, that no injustice might result from an unexpected application of the rule. U. S. v. Goodrich, 4 C. C. A. 160, 161, 54 Fed. 21, 22; Union Pac. R. Co. v. Colorado Eastern R. Co., 4 C. C. A. 161, 54 Fed. 22; City of Lincoln v. Sun-Vapor Street Light Co. of Canton, 8 C. C. A. 253, 59 Fed. 756, 759. But in the later cases the rule has been steadily and uniformly enforced. Thus, in Frame v. Portland Gold Min. Co., 47 C. C. A. 664, 665, 108 Fed. 750, 751, a writ of error was dismissed because the assignment of errors was not filed until two days after the issue of the writ. To the same effect are Flahrity v. Railroad Co., 6 C. C. A. 167, 56 Fed. 908; Crabtree v. McCurtain, 10 C. C. A. 86, 61 Fed. 808; Lloyd v. Chapman, 35 C. C. A. 474, 93 Fed. 599, 601; Insurance Co. v. Conoley, II C. C. A. 116, 63 Fed. 180; Grape Creek Coal Co. v. Farmers' Loan & Trust Co., 12 C. C. A. 350, 63 Fed. 891; Van Gunden v. Iron Co., 3 C. C. A. 294, 52 Fed. 838; Railway Co. v. Reeder, 22 C. C. A. 314, 76 Fed. 550. The assignment of errors in this case was not filed until seven days after the allowance of the appeal, and the appeal must be dismissed under rule 11. It is so ordered.

(124 Fed. 156.)

DENVER & R. G. R. CO. et al. v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. July 7, 1903.)

No. 1,874.

1. PRELIMINARY INJUNCTION-PURPOSE.

The purpose of a preliminary injunction is to protect and preserve the rights of all the litigants with the least injury to each until the controversies between them can be tried and finally decided.

2. SAME

WHEN GRANTED-STATUS Quo.

A preliminary injunction to maintain the status quo may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult, and injury to the moving party will be immediate, certain, and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small if it is granted. 3. SAME-WHEN MODIFIED.

A preliminary injunction may be modified when by such a modification the injury or inconvenience of one or more of the litigants may be de12. See Injunction, vol. 27, Cent. Dig. §§ 86, 305, 306.

creased without thereby increasing the danger of loss or injury to their opponent.

(Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the District. of Colorado.

The opinion of the Circuit Court, delivered orally by Hallett, District Judge, was as follows:

In the pending suit of the government against the Denver & Rio Grande Railroad Company et al., I have reached the conclusion that the injunction ought to be allowed. I do not doubt that the respondent has in some measure and degree exceeded the authority conferred upon it by the acts of Congress under which it has acted. I shall not at this time undertake to set down the particulars upon which that judgment rests, leaving those matters for consideration at the final hearing of the cause. I do not doubt, also, that there may be a remedy in equity for such matters as are charged in the bill of complaint. The doctrine as to the remedy in equity for cutting timber trees, despoiling lands of their timber, which prevailed in the early days of New York and New Jersey and other Eastern states, has, in my judgment, no application to an arid country, such as this is. I think, furthermore, that it has no application whatever to government lands, and to a proceeding on the part of the government to preserve any part of its lands for the use of citizens in the way in which they are ordinarily granted. I need not go upon that subject any further.

But there is another ground of jurisdiction which seems to me to be entirely satisfactory, if there were no other. These depredations upon the gov ernment land are ordinarily committed by what are known as "sawmill men," and they are of a fugacious and predaceous disposition, which renders the action of trespass at law entirely useless in any effort to collect the value of the timber. This consideration controls very largely as to what shall be done with the timber which is now upon the ground, which has been put into logs or into lumber, and is held by several of the defendants who are sawmill companies or corporations. I think that it is not reasonable or prudent to deliver this lumber, in the amount and value as stated, over to these parties, to be disposed of as they shall think fit. At the same time, I am not quite able to assent to the proposition made by counsel for the government, that the lumber may well enough stand until the determination of the suit. These suits must last a long time. They must go through this court and through courts of review, and this takes considerable time. There is great danger of fire and other destruction meanwhile. So that I think some steps ought to be taken towards disposing of this property. Counsel has disclaimed the idea of a receiver, and wisely so, I think, because I do not believe that the case stands for a receiver at least not as yet. I think that we may wisely enough take steps towards getting an inventory of the property where it is now, and when that shall be completed we may give these companies who have possession of it an opportunity to dispose of it in some way, and under some rules to be prescribed at that time, if they shall desire to do so. This inventory may be taken by an officer of the court, by and with the aid and assistance of these parties, or otherwise, as they may prefer. If they do not care to participate in the inventory, we can go on without their assistance; but if they wish to make such an application to the court hereafter, as they will be allowed to make, to take steps towards selling the property or disposing of it otherwise under the act of Congress, perhaps we may be inclined to allow the Rio Grande Company to take such parts of it as have been manufactured for its use. But however that may be, those matters stand over for consideration. At present I am inclined only to appoint an officer to proceed with this inventory, and to report to the court hereafter when he shall be able to complete it. For that purpose Mr. Marshall Johnson will be appointed, who, I am advised, is proficient in figures, and knows how to do such work. Otherwise the injunction may stand until the further order of the court in the terms in which it has been