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MANSLAUGHTER IN SECOND DEGREE 277 MANSLAUGHTER IN FOURTH DEGREE

V.

cusable or justifiable homicide. Held, that 195 N. Y. 102, 21 L. R. A. (N. S.) 998, 133 Am. the phrase "when perpetrated without a de- St. Rep. 770, 16 Ann. Cas. 837. sign to effect death and in a heat of passion"

Comp. Laws 1909, $ 2280, defines "manwas employed to express the distinction be- slaughter in the second degree” as every killtween homicide in the first degree and mur. ing of one human being by the act, procureder, and where one kills another in a cruel

ment, or unusual manner, without excuse or justifi- which, under the provisions of the statute,

or culpable negligence of another, cation, or by means of a dangerous weapon is not murder or manslaughter in the first under circumstances which do not excuse or degree or excusable homicide. Turner justify the killing, the crime is at least man. State, 126 Pac. 452, 459, 8 Okl. Cr. 11; Kent slaughter in the first degree. State V. Ed

v. Same, 126 Pac. 1540, 1043, 8 Okl, Cr. 188. munds, 104 N. W. 1115, 1116, 20 S. D. 135.

MANSLAUGHTER IN THIRD DEGREE MANSLAUGHTER IN SECOND DEGREE

Under Rev. St. 1909, $ 4462, defining Manslaughter in the second degree is the manslaughter in the third degree as the killunlawful, involuntary killing of a human ing of another with the design to effect death being. Neilson v. State, 40 South. 221, 222, by a dangerous weapon, there can be no 146 Ala. 683.

manslaughter in the third degree where the "Manslaughter in the second degree" is killing was with the design to effect death the unnecessary killing of another either and was intentional, but one may be guilty while resisting an attempt by such other per- of manslaughter in the third degree, when in son to commit any felony or to do any un- the heat of passion he struck and killed the lawful act after such attempt shall have fail- adversary with a dangerous weapon under ed. State v. Stevenson, 85 Pac. 797, 798, 74 circumstances authorizing a finding that he Kan. 193.

did not intend to kill the adversary by the Under St. 1893, $ 2090, every killing of a

blow. State v. Hanson, 132 S. W. 245, 248, human being by culpable negligence which 231 Mo. 14. under the chapter on homicide is not murder St. 1898, § 4354, declares that any per. or manslaughter in the first degree, nor ex- son who shall kill another in the heat of cusable or justifiable homicide, is manslaugh- passion without a design to effect death, by a ter in the second degree. Barker v. Territo- dangerous weapon, in any case except such ry, 78 Pac. 81, 83, 15 Okl. 22.

wherein the killing of another is declared to St. 1898, $ 4351, makes it manslaughter' be justifiable or excusable, shall be deemed in the second degree to unnecessarily kill an- guilty of manslaughter in the third degree. other while resisting an attempt of the other Duthey v. State, 111 N. W. 222, 224, 131 Wis. to commit an unlawful act. Pollock v. State, 178, 10 L. R. A. (N. S.) 1032; Bradley v. 116 N. W. 851, 854, 136 Wis. 136.

Same, 124 N. W. 1024, 1025, 142 Wis. 137. Rev. St. 1899, § 1826 (Ann. St. 1906, p. MANSLAUGHTER IN FOURTH DE1267), defines manslaughter in the second de

GREE gree to be the killing of a human being with

Where the killing is intentional, “manout a design to effect death in a heat of pas- slaughter in the fourth degree” is defined sion in a cruel or unusual manner. State v. Colvin, 126 S. W. 448, 456, 226 Mo. 446.

as the intentional killing of a human being

in the heat of passion on a reasonable proyWhere there is a want of intention or ocation, without malice and without prewillfulness in the doing of the unlawful act meditation, and under circumstances which causing death, resulting from a mental sta- will not render the killing as justifiable or tus incapable of forming an intent or purpose excusable homicide. State v. Sebastian, 114 to do the act, though produced by drunken- S. W. 522, 528, 215 Mo. 58 (citing State v. ness, the homicide is reduced to manslaugh- McKenzie, 76 S. W. 1015, 177 Mo. loc. cit. 712; ter in the second degree. Heninburg v. State v. Hermann, 23 S. W. 1071, 117 Mo. loc. State, 43 South. 939, 960, 151 Ala. 26.

cit. 637; State v. Sumpter, 55 S. W. 76, 153 Under Pen. Code, $ 179, defining homicide Mo. 436; State v. Meadows, 56 S. W. 878, 156 as the killing of one human being by the Mo. 110; State v. Brown, 64 Mo. 367; State act, procurement, or omission of “another,” v. Diller, 70 S. W. 139, 170 Mo. 1; State and section 180. providing that homicide is v. Ashcraft, 70 S. W. 898, 170 Mo. 409; State either murder or manslaughter, and section v. Kindred, 49 S. W. 845, 148 Mo. 270; State 193, subd. 3, making a homicide manslaugh- v. Gartrell, 71 S. W. 1045, 171 Mo. 489); ter in the second degree when due to the act, State v. Darling, 97 S. W. 592, 600, 199 Mo. procurement, or culpable negligence of any 168; State v. Greaves, 147 S. W. 973, 975, "person" which does not constitute murder or 243 Mo. 540. As a general rule it takes an manslaughter in the first degree, a corpora- assault, with personal violence, to constitute tion may not be indicted for manslaughter, such provocation. State v. Todd, 92 S. W. since the word "another" means another 674, 679, 194 Mo. 377 (quoting and adopting human being, and since the word “person” definition in State v. McKenzie, 76 S. W. 1015, does not include a corporation. People y. 177 Mo. 699). "Manslaughter in the fourth Rochester Ry. & Light Co., 88 N. E. 22, 24, degree," under the statutes of this state, is

the intentional killing of a human being in MANUAL DELIVERY
the heat of passion, on a reasonable provoca-
tion, without malice and without premedita-

“Dominion," as applied to a conveyance, tion, and under circumstances which will not means “to pass the instrument of writing render the provocation justifiable or excus- from one man to another, as symbolic of his able homicide, and as a general rule it takes transferring the land to the person to whom an assault with personal violence to consti- it is delivered. Now the delivery must be tute such provocation. State v. Kelleher, 100 made. It must be had. If a man draws a S. W. 470, 475, 201 Mo. 614 (quoting and deed, and intends to deliver it, but never adopting definition in State v. McKenzie, 76 does, it is never a deed, because it is not conS. W. 1019, 177 Mo. 712). Where deceased summated by delivery, and that delivery must pursued and attacked accused, who had fled be an actual delivery; that is, the maker of after striking deceased with a stone, accus- the deed must intend to pass it over to the ed's act in killing deceased who had assault- grantee, the person to whom it is made. His ed him and struck him was manslaughter in dominion and right to the control over the the fourth degree, the assault and battery property as set out in the deed passes with being sufficient provocation to reduce the the delivery. Sometimes it is called 'manuhomicide to that offense. State v. Wilson, al delivery,' handing it over to him." Lan147 S. W. 98, 104, 242 Mo. 481.

caster v. Lee, 51 S. E, 139, 141, 71 S. C. 280. Gen. St. 1901, 8 2011 (Crimes Act, $ 16), defines “manslaughter in the fourth degree" MANUAL GIFT as the involuntary killing of another in the heat of passion, by means neither cruel nor the Louisiana Code as the giving of corporeal,

A "manual gift,” which is defined by unusual. State v. Knoll, 83 Pac. 622, 623, 72 movable effects accompanied by real delivery, Kan. 237; Same v. Moore, 100 Pac. 629, 630, may be free, onerous, or remunerative, and, 79 Kan. 688.

when the donor makes such a gift omnium “Manslaughter in the fourth degree" is bonorum on condition that the donation shall the involuntary killing of another in the heat maintain him for the rest of his life, it will of passion, or any homicide which would be be dealt with as an onerous donation and not manslaughter at common law, and which is as a commutative contract. Ackerman v. not excusable nor justifiable, or is not de- Larner, 40 South. 581, 587, 116 La. 101. clared to be manslaughter in some other degree. State v. Goldsby, 114 S. W. 500, 503,

MANUAL LABOR 215 Mo. 48 (citing 2 Bishop's Crim. Law [6th Ed.) 8 695).

The term "manual labor," in its ordiAn instruction that: “If the defendant nary and usual meaning and acceptation, shot and killed deceased while in the heat means labor performed by and with the hands of passion aroused by the striking of him or hand, and it implies the ability for such with a stick produced in evidence, and with sustained exercise and use of the hands or out malice or premeditation,

and hand at a labor as will enable a person therenot in necessary self-defense, then he is guil- by to earn or assist in earning a livelihood. ty of 'manslaughter in the fourth degree' Being able to temporarily use the hands or

"-was faulty in that it did not re- hand at and in some kind of labor, but withquire the jury to find that defendant inten- out ability to sustain such ordinary exercise tionally shot and killed deceased. State v. and use of the hands at some useful labor Elsey, 100 S. W. 11, 14, 201 Mo. 561.

whereby money may be earned to substanA killing resulting from an intentional tially assist in earning a livelihood at some shot, though without design to effect death, kind of manual labor, does not constitute is not involuntary, within Rev. St. 1898, s ability to perform manual labor. Grand 4362, declaring that involuntary killing in the Lodge Brotherhood of Locomotive Firemen v. heat of passion, etc., shall be deemed "man- Orrell, 69 N. E. 68, 69, 206 Ill. 208. slaughter in the fourth degree." Johnson v. When a person is employed to work with State, 108 N. W. 55, 58, 59, 129 Wis. 146, 5 his hands, as well as to exercise superintendL. R. A. (N. S.) 809, 9 Ann. Cas. 923.

ence, the line must be drawn somewhere beWhere accused shot his wife with a pis-tween what are acts of superintendence and tol in an alleged insane frenzy, resulting from what acts of “manual labor,” or all that he her alleged misconduct, the case did not pre-does must be regarded as superintendence or sent a killing within St. 1898, 8 4363, declar- as manual labor, which manifestly would be ing that every other killing of a human being unjust. Though the principal duty of an by the act, procurement, or culpable negli- employé at a stone quarry was that of supergence of another, where such killing is not intendence, his putting a can of powder on justifiable or excusable, or is not declared to the edge of the pit, whence it was accident. be murder or manslaughter in some other ally knocked into the pit, causing an explodegree, shall be deemed manslaughter in the sion, is not an act of superintendence, so as fourth degree. Duthey v. State, 111 N. W. to render the master liable for injury to a 222, 224, 131 Wis. 178, 10 L. R. A. (N. S.) workman from the explosion. Riou v. Rock1032.

port Granite Co., 50 N. E. 525, 171 Mass.

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162 (citing McCauley y. Norcross, 30 N. E. generation of steam to be distributed under 464, 155 Mass. 584; Cashman v. Chase, 31 a municipal franchise through pipes laid in N. E. 4, 156 Mass. 342; O'Brien v. Řideout, the streets, and supplied for heating purpos36 N. E. 792, 161 Mass. 170; Dowd v. Boston es, is a "manufactory." A gas company is & A. R. Co., 38 N. E. 440, 162 Mass. 185 ; also a manufactory within such act. Wells O'Neil v. O'Leary, 41 N. E, 662, 164 Mass. 387). v. Christian, 76 N. E. 518, 519, 165 Ind. 662

The owner of horses, who hires them to a (citing Bates Mach. Co. v. Trenton & N. B. contractor, the latter using the horses in R. Co., 58 Atl. 935, 70 N. J. Law, 684, 103 aid of hauling and banking logs, and the Am. St. Rep. 811; Burke v. Mead, 64 N. E. owner performing no “manual labor or other 880, 159 Ind. 252, 260; Commonwealth v. services" in connection with the logs, is not Lowell Gas Light Co., 12 Allen [94 Mass.) 75). entitled to a lien on such logs, under Rev.

MANUFACTURE Laws 1905, $ 3524. McKinnon v. Red River Lumber Co., 138 N. W. 781, 782, 119 Minn. See Building for Trade or Manufacture; 479, 42 L. R. A. (N. S.) 872.

Place of Manufacture. Any process by which crude opium is

Any trade manufacture or business, see converted into a product fit for smoking consti

Any. tutes a "manufacture" of smoking opium with

As to specific industries which are enin the meaning of the Internal Revenue Act

gaged in manufacture, see Subtitle Oct. 1, 1890, c. 1244, 88 36-40, which impose

Manufacturer. a tax upon all opium manufactured for smok

Contract of sale or manufacture, see

Contract of Sale. ing purposes in the United States, and prescribe regulations for such manufacture to be

Manufacture or otherwise, see Otherwise. observed under penalty of criminal prosecu

What constitutes manufactured articles, tion. Marks v. United States, 196 Fed. 476,

see Manufactures and Manufactured

Articles. 478, 116 C.C. A. 250.

The word "manufacture" is not a techMANUAL TRAINING SCHOOL

nical word, but has a common, ordinary

meaning. Sharpe v. Hasey, 114 N. W. 1118, See Maintenance of Manual Training 1119, 134 Wis. 618. School,

To manufacture is to modify or to change MANUFACTORY

natural substances, so that they become ar

ticles of value or use. Baltimore & O. S. W. Cutting and storing ice

R. Co. v. Cavanaugh, 71 N. E. 239, 241, 35 A foreign corporation carried on a retail Ind. App. 32. ice business in a town where it had its office The process of manufacture is supposed and transacted all its business. It sold only to produce some new article by the applicasuch ice as it cut and stored. It owned sever- tion of skill and labor to the raw material. al ice houses on the shores of a pond in an- The broad interpretation which the courts other town, where it had a steam engine used have always given the word “manufacture" for cutting and storing ice there. It trans- must include the construction of buildings acted no business in the latter town, except and bridges. In re Niagara Contracting Co., what was essential for the cutting and storing | 127 Fed. 782, 783. of ice and the delivery under orders from its

The Century Dictionary defines "manufacoffice. Held, that the corporation did not ture" as the production of articles for use “bire or occupy a manufactory, store, or from raw or unprepared materials by giving shop" in the latter town, within Rev. Laws these materials new forms, qualities, proper1902, c. 12, $ 23, cl. 1, providing for the taxa- ties, or combinations, whether by manual tion of personal property in the municipality labor or machinery. State v. G. H. Tichenor in which the owner hires or occupies manu- Antiseptic Co., 43 South. 277,

78, 118 La. factories, etc.; but the steam engine, boiler,

685. and ice stored in the latter town were taxable under St. 1903, p. 448, c. 437, § 71, pro

Rolling cigarettes viding that every foreign corporation shall be The word "manufacture," as used in the subject to taxation on its machinery and mer- anti-cigarette law, is used in the sense of chandise by the municipality in which such “to engage in and carry on the business of property is situated. Hilliard v. Fells Ice manufacturing." It is the manufacturing Co., 86 N. E. 773, 774, 200 Mass. 331.

for traffic that is prohibited. The act of Steam and gas plants

“rolling cigarettes” from one's own materials Under Burns' Ann. St. 1901, $ 7255 (Acts the use as to be a part of such use, and this

and for one's own use is so connected with 1899, p. 569, c. 255), providing that contrac-it was not intended to prohibit. Dempsey tors, etc., and all persons performing labor, v. Stout, 107 N. W. 235, 76 Neb. 152. etc., for the erection, altering, repairing, etc., any house, mill, manufactory, etc., may have

Baling cotton a lien on the house, mill, manufactory, etc., The word "manufacture," as defined in a building equipped with machinery for the Worcester's Dictionary, is a process of making anything by art or reducing materials y equipped with special machinery, in which into a form fit for use, by hand or by ma- furniture was manufactured and the finer chinery, and in the Standard Dictionary is woodwork done; a paint shop, in which “the making of wares or other products by paints were mixed; a copper shop, in which hand or by machinery or by other agencies.” sheet copper was manufactured into pipe, Under these definitions, a cotton press, the steam connections, ventilators, brass and effect of the operation of which is only to copper castings, and other forms, and where compress, rebind, re-cover original bales of galvanizing was done; a boiler shop, for the cotton so as to change the form, size, and manufacture of boilers; a foundry, in which condition of the bales to make them more iron and brass castings were made out of convenient for transportation, is not con- raw materials. Large quantities of raw masidered a "manufacture." City of Memphis terials of all sorts were purchased by the V. St. Louis, & S. F. R. Co., 183 Fed. 529, company and converted into finished prod. 538, 106 C. C. A. 75.

ucts. The company manufactured ships of

all sorts and sizes and all necessary fittings Liquor

The word “manufacture” as used in act and furniture therefor, and it also did a conMarch 2, 1909 (26 St. at Large, p. 60) § 1, for other manufacturing concerns. The word

siderable amount of original and repair work prohibiting the manufacture of liquor, means “manufacture” is defined by Webster's Dicthe process of making by art, or reducing tionary: "To make (wares or other products] materials into form fit for use, by hand or by hand, by machinery, or by other agency. machinery. State v. Ravan, 74 S. E. 500, To work, as raw or partly wrought materials, 501, 91 S. C. 265.

into suitable forms for use." By the Stand

ard Dictionary: "To make or fashion by MANUFACTURER

working on or combining material. To form See Sole Manufacturer.

or produce by some industrial process; fashA "manufacturer" is one engaged in ion by hand or machinery, especially when making materials, raw or party finished, in- done in considerable quantities and regular to wares suitable for use. Chattanooga Plow business. To work or fashion by labor into Co. v. Hays, 140 S. W. 1068, 1069, 125 Tenn. useful or desirable forms.” And the Century 148 (citing And. Law Dict.; Webst. Dict.). Dictionary: "To make or fabricate anything

for use, especially in considerable quantities A corporation which makes something

or numbers, or by the aid of many hands, for profit is a "manufacturer" of that something within the meaning of Bankr. Act July form of." Held, that the corporation was

or by machinery; work materials into the 1, 1898, c. 541, § 4b, and it makes no differ- engaged in the manufacturing business, withence whether the thing so made or manufac- in the meaning of the statute. First Nat. tured is affixed to the realty or a part of the Bank of Richmond y. Wm. R. Trigg Co., 56 realty or is a mere chattel. In re Church S. E. 158, 161, 106 Va. 327, 7 L. R. A. (N. S.) Const. Co., 157 Fed. 298.

744. Code 1887, § 2485, provides that "all per

The term “manufacturing," as used in sons furnishing supplies to a mining or man- the bankruptcy act of 1898, authorizing inufacturing company, necessary to the opera voluntary bankruptcy against corporations tion of the same, shall have a prior lien," engaged in manufacturing, embraces only etc. A corporation was empowered by its such corporations as are engaged in manucharter to acquire and operate "the works, facturing as a business and selling their property, franchise, stock and bonds, rights, wares on the market, doing those things usuprivileges, and immunities of any individual, ally done by those who not only manufacfirm, or corporation, operating or owning ture their wares and goods, but place them a machine shop, dock, or shipyard, or manu

on the market for sale either by wholesale facturing railroad or marine equipment, or

or retail. Walker Roofing & Heating Co. v. machinery of any description.” The corpora- Merchant & Evans Co., 173 Fed. 771, 773, tion owned a large plant composed of vari- 97 C. C. A. 495. ous departments and shops, in which many kinds of machinery were used. The plant

Evidence held to show that a corporation consisted of a machine shop, in which ma

was principally engaged in manufacturing, chinery and tools of different sorts were and hence was subject to adjudication as a made and fitted for use; a punch shop, in bankrupt. In re Georgia Mfg. & Public Serrwhich plates were sheared and punched for ice Co., 166 Fed. 964, 96S. riveting; a pattern shop), in which all sorts Under Bankr, Act July 1, 1898, c. 541, of patterns were made from wood; a black- providing that any corporation engaged prinsmith shop, containing large steam ham-cipally in "manufacturing" or mercantile purmers, and also a number of smiths' forges, suits may be declared a bankrupt, à corporafor the forging of billets and the perform- tion organized for the purpose of manufacturance of all sorts of smith work; a furnace ing paper from wood pulp, which had purshop, for the bending and shaping of frames chased woodland and other property for the and plates; a carpenter shop, in which many commencement of its business, was subject to kinds of woodwork was done; a joiner shop, bankruptcy proceedings, within the statute,

though it had never in fact started its fac- , cles for use or sale. Union County Nat. tory; the intent being that “a corporation Bank, Liberty, Ind., v. Ozan Lumber Co., 179 pursuing, through its formative stages, a busi- Fed. 710, 715, 103 C. C. A. 584. ness of the kind described by the statute should be subject to the operation of the

Manufactures distinguished law.” In re White Mountain Paper Co., 127 Laws 1912, c. 157, prohibiting any person, Fed. 180, 182.

firm, or corporation, engaged “in manufacturThe term "engaged principally," as used than 10 hours per day, is sufficiently definite;

ing or repairing," to work employés more in Bankrupt Act, providing that any corpora: for "manufacturing” is the system of industion engaged principally in “manufacturing" pursuits niay be adjudged an involuntary and "manufacture” is the production of arti

try which produces manufactured articles, bankrupt, refers not to the objects of pursuit set out in the charter but to those in which cles for use from raw or prepared materials, the company was actually engaged. In re c. by giving them new forms, qualities, and Moench & Sons Co., 130 Fed. 685, 686, 66 c. properties, or combinations, and "repairing"

is the making or restoring of an article or C. A. 37.

thing to its completeness. State v. J. J. In the phrase "engaged in manufactur- Newman Lumber Co. (Miss.) 59 South. 923, ing," as used in Bankr. Act July 1, 1898, c. 926; 45 L. R. A. (N. S.) 851. 541, $ 4b, the word "engaged” means occupied, employed, busy, and the word “manu- having in his possession nonalcoholic drinks

An information, charging accused with facturing" means the making of an article, either by hand or machinery, into a new form than himself, is insufficient under Laws 1911,

bearing the names of "manufacturers” other capable of being used in ordinary life, or the fashioning of raw materials into a change of pp. 261, 262, $$ 1, 4, making it unlawful for form for use; and a corporation which al- any person to have nonalcoholic drinks bearthough authorized to manufacture an article ing the name or brand of "manufacturers" of commerce, has not the 'means for such manufacturers" not being idem sonans, but

other than himself; "manufactures" and manufacture, and bas taken no step in the process of manufacturing, is not engaged in separate and distinct terms with separate any proper sense in the manufacturing of S. W. 520, 521, 164 Mo. App. 204.

and distinct meanings. State v. Murphy, 147 such article, and is not subject to adjudication as an involuntary bankrupt under said Automobile repairing contpany section. In re Toledo Portland Cement Co.,

The conducting by a corporation of a 156 Fed. 83, 85.

shop for the repairing of automobiles, which Dealers and merchants distinguished repairing consisted chiefly in the adjusting of

The term “manufacturer," in its ordinary parts purchased from other persons, was not acceptation, denotes one who, through his a manufacturing pursuit, within the meaning skill and labor, shapes or combines material of Bankr. Act 1898, c. 541, § 4b, which subinto a new product, the term, under various jected the corporation to proceedings in bankstatutes, such as tax laws, being named to ruptcy. Cate v. Connell, 173 Fed. 445, 447, include others for the purpose of such laws, 97 C. C. A. 647. and where a firm merely ordered from a for

Bakery company eign manufacturer a given quantity of waists of a certain pattern, a sample of which had

A corporation organized to make bakers' been previously furnished them by the manu- goods and restaurant supplies, and sell same facturer, the firm was merely a dealer and at wholesale and retail, was organized for not a manufacturer. Remy, Schmidt & Pleiss- “manufacturing and mercantile” purposes, as ner v. Healy, 126 N. W. 202, 203, 161 Mich. those terms are used in the revenue statute; 266, 29 L. R. A. (N. S.) 139, 21 Ann. Cas. 74. and the act of the state board of equalization

in assessing its capital stock and franchise in A "manufacturer" is one engaged in mak

excess of the valuation of its tangible proping materials, raw or partly finished, into wares suitable for use. A "merchant” is dis- erty, which had been assessed by the local tinguished from a manufacturer, in that he & Co. v. O'Connell, 99 N. E. 689, 190, 255 Ill.

assessors, was unauthorized. H. H. Kohlsaat sells to earn a profit, and the manufacturer

271. sells to take profit already earned. Chattanooga Plow Co. y. Hays, 140 S. W. 1068, 1069, Brewing company 125 Tenn. 148.

A brewing company, which has done The words "merchants" and "dealers," nothing except in preparation for its business according to common understanding, mean by constructing a brewing plant, taking out something different from the word "manufac- a brewer's license, and hiring a brewmaster, turers." The former are generally employed although it has never made any beer nor to designate persons engaged in the business bought materials therefor, is a “corporation of buying and selling merchandise or other engaged principally in manufacturing," and personal property in the usual course of subject to proceedings in involuntary banktrade; the latter to designate those engaged ruptcy. In re Bloomsburg Brewing Co., 172 in the business of making or producing arti- Fed. 174, 175.

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