ground that if there was any negligence it was the negligence of a fellow servant. Instead of complying with that request the court instructed the jury that "the person in charge of the work on the part of the defendant [whose name was Wright] had control of the men, the employment of the men, and discharging them and directing them, and for that reason the court instructs you as a matter of law that he was the vice principal, * * * and not a fellow servant." It will be assumed that there was evidence tending to show the facts upon which the learned trial judge predicated his conclusion. There was also evidence, which is undisputed, that Wright was the foreman in charge of the men on the job, that he worked with them doing the same manual labor which they did, and that he worked under the immediate direction of a man by the name of Flemming, who was the general western agent of the defendant company, and who was frequently at Fremont during the progress of the work. Wright ordered one of the six men working with him and under his direction to knock out a support which was holding up a heavy frame of refrigerating pipes about to be elevated into place by a block and tackle. In obedience to that command the support was removed, and the suspended frame swung and lurched in some way unnecessary to specify and caught Otte by the thumb and lacerated it so that it had to be amputated. The negligence charged and relied upon for a recovery was the giving of the order to remove the support suddenly and without warning to plaintiff.

The logic of the charge, in view of the undisputed evidence, is that, even if Wright was only a foreman actually working with a gang of men under the immediate direction of a superintendent, yet if he had charge of the work, the right to hire and discharge men for that work, and to direct them in that work, he was a vice principal, and his negligence was imputable to the master. The evidence does not disclose that defendant was engaged in a business which naturally or reasonably, within the rule laid down in B. & O. R. R. v. Baugh, 149 U. S. 368, 383, 13 Sup. Ct. 914, 37 L. Ed. 772, consisted of different departments which required different executive heads, or that there were any such departments. On the contrary, so far as disclosed by this record, the defendant had one business, simple and indivisible in its character, and directed as usual by its general officers or agents. There is no proof that Wright was intrusted with the management and supervision of defendant's entire business, or of any separate department as known to the law. He, with the plaintiff, was engaged at the time of the injury to the latter in executing a single and separate piece of work, one out of many in the general business of the master; and at the time of the injury they were actually working together in doing the act which produced the injury.

In these circumstances the fact that Wright had actual control of the crew, the power to hire and discharge them, and to direct their movements in that particular work, did not erect that single job into a department of defendant's business, and did not make him a vice. principal. Alaska Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40, 42 L. Ed. 390; City of Minneapolis v. Lundin, 7 C. C. A. 344, 58 Fed. 525; United Zinc Companies v. Wright, 156 Fed. 571;1 Westing

1 84 C. C. A. 337.

2

house, Church, Kerr & Co. v. Callaghan (C. C. A.) 155 Fed. 397, recently decided by this court. He was in law and fact a fellow servant with the plaintiff in the construction of the refrigerating plant in question, and the risk of his negligence, if any, was assumed by his coemployés. Any other conclusion would make every separate job a separate department of business and every workman whose duties embraced the exercise of temporary authority over his fellows a vice principal. Such is not the law. Under the authority of the cases just referred to, the plaintiff was not entitled to recover, and the court should have instructed the jury, as requested, to find a verdict for defendant. The judgment is reversed, and the cause remanded to the circuit court, with directions to grant a new trial.

(157 Fed. 232.)

MORGAN v. BENEDUM et al.

(Circuit Court of Appeals, Fourth Circuit. November 6, 1907.)

No. 716.

BANKRUPTCY-APPEALS-TIME FOR TAKING.

The 10 days allowed by Bankr. Act July 1, 1898, c. 541, § 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], for taking an appeal from a judgment allowing or rejecting a claim, cannot be extended by the filing of a petition for rehearing, after such time has expired, nor will an appeal lie from the ruling on such a petition which is addressed to the discre tion of the court.

[Ed. Note.-Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9.]

Appeal from the District Court of the United States for the Northern District of West Virginia.

This case was heretofore before this court, and is found reported in 145 Fed. 466, 76 C. C. A. 236. The original case involved the question of whether a certain trust deed made by the Augusta Pottery Company was invalid because the same constituted a preference of certain creditors over others of said corporation. This court held that the preference existed, and the deed was invalid, and this appeal presents for the consideration of the court the question of whether the lower court erred in allowing holders of bonds of the bankrupt, secured under the mortgage thus declared invalid, to prove their claims in bankruptcy as common creditors, notwithstanding the same were not filed within 12 months of the adjudication of the bankruptcy. Briefly stated, the referee on the 8th of March, 1905, held the deed to be a preference. On the 17th of May, 1905, the district court reversed that holding, and this court on the 1st of May, 1906, rendered its decision reversing the lower court, reported as above stated. Meantime M. L. Benedum and John A. Howard, special receiver, etc., creditors, whose debts are in dispute on this appeal, on the 5th of October, 1905, within one year from the original decision of the referee holding said assignment to be void as a preference, filed their proofs of claim before the referee. On the 26th of July, 1906, and after the mandate of this court had been duly certified to the lower court, that court allowed the said Benedum and Howard, special receivers, to file an amended proof of their said claims, and on said 26th of July, 1906, duly allowed the same in these words: "Upon consideration whereof the court is of opinion that the said John A. Howard, receiver as aforesaid, and the said M. L. Benedum, should be permitted to file said proofs of claim as amendments to the proofs filed by them herein on the 10th day of October, 1905. It is therefore adjudged, ordered, and decreed that said claims be filed; that the claim of John A. How2 83 C. C. A. 669.

ard, receiver as aforesaid, amounting with interest to date to $1,731.75, be allowed as a debt without priority against the estate of Augusta Pottery Company, bankrupt; that the claim of said M. L. Benedum, amounting with interest to date to $4,040.75, be allowed as a debt without priority against the estate of said bankrupt; that W. Frank Stout, the referee to whom this cause was heretofore referred, be and he is hereby directed to recast the dividend sheets already prepared in this cause so as to include the claims hereinbefore mentioned and in due course to cause all proper dividends thereon to be paid." On the 28th of August, 1906, the appellant herein filed his petitions before the referee, and afterwards, on the 10th of September, 1906, before the court, asking a rehearing of the order allowing said claims, and praying that the same be rejected for the reason that the proof thereof was not filed within the time prescribed by the bankrupt act, and also because the claims were without consideration deemed valuable in law, and void as to bona fide creditors of said company. The lower court allowed the holders of said debts to answer the petitions, and referred the questions arising thereon to the referee. On the 31st of October, 1906, the district court entered an order dismissing the petitions, among other things reciting that the appellant had failed to present proof of the averments made in the time required by the order of reference. From the latter order this appeal is taken.

Scott C. Lowe, for appellant.

Davis & Davis, Riley & Ritz, and Osman E. Swartz, for appellees. Before PRITCHARD, Circuit Judge, and MORRIS and WADDILL, District Judges.

WADDILL, District Judge (after stating the facts as above). Two questions are presented for consideration. First, whether in point of fact the proofs of claims were presented within the statutory period; and, second, whether the appellant has within the like period taken an appeal from the decision of the lower court allowing the claims.

In the view we take, it is unnecessary to decide the first question raised, though in passing it may be said that it would seem that the holders of the debts should be afforded opportunity to prove their claims as common creditors, after it was finally adjudged that they were creditors of that class. Keppell v. Tiffin Sav. Bank, 197 U. S. 355, 25 Sup. Ct. 443, 49 L. Ed. 790, 13 Am. Bankr. Rep. 552. But whatever may be the correct view in this respect, it cannot avail to serve these appellants, as manifestly the appeal from the order allowing the claims was not taken within the time prescribed by the statute. The bankruptcy act of July 1, 1898, c. 541, § 25, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432], in plain terms provides that from orders allowing or rejecting a debt or claim of $500 or over, "such appeal shall be taken within 10 days after the judgment appealed from has been rendered, and may be heard and determined by the appellate court in term or vacation as the case may be." This appeal should have been taken within 10 days from the order of 26th of July, 1906, and the time cannot be extended by means of a petition for review or rehearing filed more than a month thereafter. To do so would be to evade the statute of limitations entirely. The fact that the appeal was taken within 10 days from the order finally denying the application for a rehearing entered on the 31st day of October, 1906, cannot be used to bridge over the period from July to October. No appeal lies from an order rejecting a petition for rehearing under the bankrupt law.

Sections 24 and 25 of the bankruptcy act prescribe in what cases

appeals may be had, and these sections manifestly do not cover such a case as this. Loveland on Bankruptcy, §§ 302, 314. Assuming that the appellant relies on the rules and practice in equity causes as controlling in the matter of taking this appeal, he is clearly without remedy, as it is well settled that inasmuch as petitions for rehearing are addressed to the sound discretion of the court, no appeal lies from an order refusing the same. 11 Bates, Eq. Pro. 686; Steines v. Franklin, 14 Wall. 15, 20 L. Ed. 846; Buffington v. Harvey, 95 U. S. 99, 24 L. Ed. 381; Boesch v. Graff, 133 U. S. 699, 10 Sup. Ct. 378, 33 L. Ed. 787.

The decision of the lower court is plainly right, and should be affirmed.

Affirmed.

(157 Fed. 234.)

GILL V. AUSTIN.

(Circuit Court of Appeals, First Circuit. November 21, 1907.)

No. 662.

COURTS-CIRCUIT COURTS OF APPEALS RULES OF DECISION AS BETWEEN TWO CIRCUIT COURTS OF APPEALS IN DIFFERENT CIRCUITS.

In accordance with the practice in this circuit to follow the decisions of other Circuit Courts of Appeals whenever they may properly form a precedent, Eidman v. Tilghman, 136 Fed. 141, 69 C. C. A. 139, is followed on a question of the construction of the statutes with reference to the war revenue tax on legacies.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, §§ 327, 328.] In Error to the Circuit Court of the United States for the District of Massachusetts.

William H. Garland, Asst. U. S. Atty. (Asa P. French, U. S. Atty., and J. C. McReynolds, Special Asst. Atty. Gen., on the brief), for plaintiff in error.

James W. Austin and Francis C. Welch, for defendant in error. Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM, Circuit Judge. This writ of error involves the same. question of statutory construction with reference to the war revenue tax on legacies which was passed on adversely to the United States by the Circuit Court of Appeals in the Second Circuit in Eidman v. Tilghman, 136 Fed. 141, 69 C. C. A. 139, decided on February 24, 1905. It is true there is another question involved here, whether or not the legacy on which the tax was assessed ever became effectual; but that we can pass by. Eidman v. Tilghman was affirmed by a divided court in 203 U. S. 580, 27 Sup. Ct. 779, 51 L. Ed. 326. It is also said that the same question was decided against the United States by the Circuit Courts of Appeals for the Third Circuit (McCoach v. Philadelphia. Trust, Safe Deposit & Ins. Co., 142 Fed. 120)1 and the Seventh Circuit (United States v. Marion Trust Co., 143 Fed. 301, 74 C. C. A. 439); also by a divided court in McCoach v. Norris, 205 U. S. 539, 27 Sup.

173 C. C. A. 610.

Ct. 793, 51 L. Ed. 921. Inasmuch as all these decisions were against the United States, we have not had occasion to verify what is claimed with reference to those in the Third and Seventh Circuits. The judgment of the Circuit Court now brought before us for review was in harmony with the result in Eidman v. Tilghman. Under the circumstances, it seems of no advantage for us to express any opinion, and, perhaps, it would be presuming for us to do so. It is enough that we refer to our practice, as stated many times, with reference to our disposition to follow decisions of the Circuit Courts of Appeals in other circuits whenever they can form a precedent. In accordance with that practice, we hold that the United States cannot prevail.

The judgment of the Circuit Court is affirmed.

MEMORANDUM DECISIONS.

(156 Fed. 1021.)

ATLANTIC COAST LINE R. CO. v. UNITED STATES. (Circuit Court of Appeals, Fourth Circuit. November 22, 1907.) No. 754. In Error to the District Court of the United States for the Eastern District of North Carolina. For opinion below, see 153 Fed. 918. Geo. B. Elliott, for plaintiff in error. L. M. Walter, Sp. Asst. U. S. Atty., and Harry Skinner, U. S. Atty. Before PRITCHARD, Circuit Judge, and MORRIS and WADDILL, District Judges. PER CURIAM. Upon an inspection of the record in this case it appears that the writ of error was improvidently granted, in that there was no final Judgment in the court below. The writ of error is therefore dismissed, and the District Court will proceed with the case according to law.

(156 Fed. 1022.)

CHOUQUETTE v. MEXICAN CENT. RY. CO., Limited. (Circuit Court of Appeals, Fifth Circuit. November 26, 1907.) No. 1,477. In Error to the Circuit Court of the United States for the Western District of Texas. Geo. E. Wallace and J. A. Buckler, for plaintiff in error. T. A. Falvey and Waters Davis, for defendant in error. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

PER CURIAM. The judgment of the Circuit Court is reversed, and the cause is remanded, with instructions to dismiss the suit, without prejudice to an action in any court willing and competent to administer relief under the laws of Mexico. See Mexican Central Railway Company, Ltd., v. J. W. Eckman, Guardian, etc., 205 U. S. 538, 27 Sup. Ct. 791, 51 L. Ed. 920; Slater v. Mexican Central National Railroad Company, 194 U. S. 120, 24 Sup. Ct. 581, 48 L. Ed. 900. The costs of this court to be paid by the plaintiff in error.

(156 Fed. 1022.)

CONTINUOUS GLASS PLATE CO. v. PRESSED PRISM PLATE GLASS CO. (Circuit Court of Appeals, Third Circuit. October 2, 1907.) No. 1,077. Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. Thomas W. Bakewell, for appellee. Cause dismissed, under rule 16. See 150 Fed. (C. C.) 355.