If such petition be dismissed by the court or withdrawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seisure, taking, or detention of such property. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors in such bond.

SEC. 4. Who May Become Bankrupts.—a Any person who owes debts, except a corporation, shall be entitled to the benefits of this act as a voluntary bankrupt.' b Any natural person, except a wage-earner or a person engaged chiefly in farming or the tillage of the soil, any

referred to, and the means open to the alleged bankrupt to enable him to retain possession.

1Analogous provisions: Act 1841, 87; 1867, 811; R. S. 85014. As to the persons by whom proceedings in bankruptcy may be conducted, see Rule IV.

A petition in bankruptcy cannot be verified by attorney except where the facts are within his own knowledge (In re Nelson [D. C.], 98 Fed. Rep. 76), but the irregularity will be waived unless objected to before pleading (in re Simonson et al. [D. C.], 1 N. B. News, 230; s. c. 92 Fed. Rep. 904; Leidigh Carriage Co. v. Stengel [C. C. A ], 1 N. B. News, 296; s. c 95 Fed. Rep. 637). An adjudication, however, will not be set aside because of the petition being verified before the bankrupt's attorney unless it appear that he was attorney of record in a bankruptcy proceeding for the petitioner at the time; the fact that he subsequently became such did not affect the affidavit (in re Kindt [D. C.], 98 Fed. Rep. 403, citing 1 Enc. Pl. & Prac. 331).

Persons cannot become bankrupt who can defeat provable claims on the ground of coverature (in re Duquid et al. [D. C.], 100 Fed. Rep. 274; in re Schlichter, 2 B. R. 336), infancy (in re Derby, 8 B. R. 106; s. c. 6 Ben. 232), or insanity (in re Weitzel, 14 B. R. 466). In re Derby was a case under the act of 1867. One under that of 1841, in re Book, 3 McLean, 317, held to the contrary, while under the present act, the holding in both of these cases has been modified in that a minor who has been manumitted might become a bankrupt and be discharged from his debts (in re Brice [D. C.], 1 N. B. News, 276, 310; s. c. 93 Fed. Rep. 942). If, however, an act of bankruptcy be committed by one who is sane and afterwards becomes insane, involuntary bankrupt proceedings may be taken against the guardian (In re Pratt, 6 B. R. 276). An infant who is obligated on a claim for necessaries, or affirms voidable ones on becoming of age, can become a bankrupt (In re Derby, 8 B. R. 106; s. c. 6 Ben. 232; in re Cotton, 2 N. Y. Leg. Obs. 370; Farris v. Richardson, 6 Allen, 118), as can also a married woman who becomes obligated in dealings relating to her own property (Ex p. Mear,2 Bro. 266; in re Kinkeade, 3 Biss. 405; s. c. 7 B. R. 439; in re O'Brien, 1 B. R. 176; in re Lyon, 1 Cent. L. J. 133; ex p. Franks, 7 Bing. 764; ex p. Carrington, 1 Atk. 206; ex p. Preston, 1 Cooke, 40; in re Collins, 10 B. R. 335; s. c. 3 Biss. 415).

Since a proceeding in bankruptcy is equitable in its nature (In re Weitzel, 7 Biss. [C. C.], 290), jurisdiction will undoubtedly be taken of cases where the defenses at law above referred to are questionable.

2A person whose principal occupation is raising cattle and hogs for the market,

unincorporated company, and any corporation engaged principally in manufacturing, trading, printing, publishing, or mercantile pursuits,' owing debts to the amount of one thousand dollars or over, may be adjudged an involuntary bankrupt upon default or an impartial trial, and shall be subject to the provisions and entitled to the benefits of this act. Private bankers, but not national banks or banks incorporated under State or Territorial laws, may be adjudged involuntary bankrupts.

his farm being devoted chiefly to use as pasture land, and for raising grass, hay and corn wherewith to feed and fatten the stock, is not subject to be adjudged bankrupt on the petition of his creditors, being a farmer, though not a tiller of the soil (In re Thompson [D. C.], 102 Fed. Rep. 287.

The persons excluded from the operation of the bankruptcy act as farmers will not exempt a merchant who commits an act of bankruptcy, then abandons his mercantile business and engages and becomes chiefly occupied in farming (In re Luckhardt [D. C.], 101 Fed. Rep, 807).

1 An incorporated water company engaged in the business of obtaining, transporting, and supplying pure water for municipal and domestic use, though it obtains part of its water supply by purchase, is not "engaged principally in trading or mercantile pursuits," and cannot be adjudged bankrupt upon involuntary proceedings (In re N. Y. & W. Water Co. [D. C.], 98 Fed. Rep. 711). For the same reason, a corporation engaged in mining precious metals cannot be adjudged an involuntary bankrupt (In re Elk Park Mining & Milling Co. [D. C.], 101 Fed. Rep. 422; in re Rollins Gold & Silver Min. Co. [D. C.], 102 Fed. Rep. 982). It is the actual business referred to, whatever the provisions of the corporation's charter (Ala. & Chat. R. R. Co. v. Jones, 5 B. R. 97). It is the corporation as a unit or whole that may be adjudged bankrupt, rather than its members, notwithstanding a State statute makes them jointly and severally liable for the debts of the corporation (James v. Atl. Delaine Co., II B. R. 390). A Corporation exists for the purpose of bankruptcy proceedings after its actual dissolution and until its debts are paid or its assets distributed (In re Independent Ins. Co., 6 B. R. 169, 260; in re Merchant's Ins. Co., 3 Biss. 162; s. c. 6 B. R. 43; in re Washington Ins. Co., 2 Ben. 292; s. c. 2 B. R. 648). The appointment of a receiver for a corporation by a State Court will not oust the Federal Court of jurisdiction to adjudge it bankrupt under this provision (In re Empire Metallic Bedstead Co. [D. C.], I N. B. News, 301; s. c. 95 Fed. Rep. 957). An incorporated Sanitorium Co. comes within the meaning of this statute (In re San Gabriel Sanitorium Co. [D. C.], 1 N. B. News, 390; s. c. 95 Fed. Rep. 271), but an Insurance Company does not (In re Cameron Town M. F. L. & W. Ins. Co. [D. C.], 1 N. B. News, 383; s. c. 96 Fed. Rep. 756).

2Three or more creditors holding claims agregating $500 or over may file petition (8596). In computing the jurisdictional amount of debts, $1,000, specified in 24, the claim of a creditor to whom a fraudulent preference had been given should be included (In re Tierre [D. C.], 95 Fed. Rep. 425; s. c. 1 N. B. News, 402); and in determining the number of creditors who may file involuntary petitions in accordance with 59, those who have previously filed their claims in a voluntary assignment in a State court may be included (in re Folb [D. C.], 1 N. B. News, 134; s. c. 91 Fed. Rep. 107; in re Curtis et al. [C. C. A.], 1 N. B. News, 357; s. c.

SEC. 5. Partners.—a A partnership, during the continuation of the partnership business, or after its dissolu

94 Fed. Rep. 630; s. c. [D. C.], 91 Fed. Rep. 737; though such creditors are estopped from participating in the distribution of the estate unless they surrender what they received under the assignment (In re Mills [D. C.], 95 Fed. Rep. 269). The surrender of the dividend under the assignment is probably regarded as a repudiation of the assignment, at least such creditors must repudiate the part they took in the assignment proceedings before they will be permitted to become petitioning creditors in involuntary bankruptcy (Simonson v. Sinsheimer [C. C. A.], 95 Fed. Rep. 948, overruling in re Romanow [D. C.], 92 Fed. Rep. 510, which held that creditors who assented to such assignment could not maintain an involuntary petition alleging such assignment as the act of bankruptcy). If the petition is sufficient on its face as to the number of creditors and amount of indebtedness, the court will assume jurisdiction, and it will not permit any of the creditors joining in the petition to withdraw therefrom on a settlement of their claims, or for any other cause, when such act would affect the jurisdiction or jeopardize the proceedings (In re Beddingfield [D. C.], 1 N. B. News, 385; s. c. 96 Fed. Rep 190). If, however, a petition be filed and afterward proves to be wanting in the number of creditors or amount of indebtedness, other creditors, on entering their appearance, will be allowed to join in the petition and will be reckoned as though they were original petitioners, without regard to the time when they appear (In re Schwartz [D. C.], 1 N. B. News, 266; in re Romanow [D. C.], 92 Fed. Rep. 510). A creditor of a partnership, being a creditor of each member of the firm, is entitled to join in a petition in involuntary bankruptcy brought against one of the partners individually (In re Mercur (two cases) [D. C.], 95 Fed. Rep. 634). See also 18 and notes as to procedure in courts. So also creditors of a corporation who are directors of it may join as petitioners (In re Rollins Gold & Silver Min. Co. [D. C.], 102 Fed. Rep. 982).

The

1Analogous provisions: Act of 1841, 14; 1867, 36; R. S. 5121. There is no final settlement of the affairs of a firm within the meaning of bankruptcy law, until its debts are paid, or extinguished in some other way, and an adjudication may be made upon the voluntary petition of the partners alleging that there are unsatisfied firm debts, though there are no assets, and notwithstanding an individual petition will lie (In re Hirsch et al [D. C], 97 Fed. Rep. 571). partnership need file but one petition; on this the firm and each partner may be discharged, there being but one proceeding and only one filing fee required (In re Langslow [D. C.] 98 Fed. Rep. 869). An individual's act of bankruptcy against firm property will authorize the adjudication of the firm upon an involuntary petition, but not an adjudication of an individual of such firm who did not participate in such act of bankruptcy (In re Meyer [C. C. A.], 98 Fed. Rep. 976) The petition of a partnership will not warrant the discharge of its members from individual debts unless particularly prayed (In re Russell [D C.], 97 Fed. Rep. 32). A surviving partner may be declared an involuntary bankrupt for acts against the partnership property (in re Stevens, 5 B. R. 112; s. c. I Saw. 397), though not for acts of a liquidating partner against firm property (Chemical Nat. Bank v. Meyer [D. C.], 1 N. B. News, 304; s c. 92 Fed. Rep. 896). Still, if the firm be insolvent, a general assignment of the firm's property by a liquidating partner is an act of bankruptcy on which such partner may be adjudged bankrupt as an individual (In re Meyer [C. C. A ], 98 Fed. Rep. 976).

A member of a firm may be adjudged a bankrupt as to firm obligations (in re Melick, 4 B. R. 97), and one who assumes partnership obligations, even though discharged as a member of a firm that goes into bankruptcy (In re Sheppard, 3 B. R. 172; Chemical Nat. Bank v. Meyer [D. C.], 1 N. B. News, 304; s. c. 92 Fed.

tion and before the final settlement thereof, may be adjudged a bankrupt.'

b The creditors of the partnership shall appoint the trustee; in other respects so far as possible the estate shall be administered as herein provided for other estates.

Rep. 896), since he might be held by the creditors as for an individual obligation (In re Downing, 3 B. R. 748; in re Long, 9 B. R. 227; in re Collier, Taylor & Co., 12 B. R. 266; in re Rice, 9 B. R., 373). A firm may be adjudged bankrupt, though none of its members be so adjudged (Chemical Nat. Bank v. Meyer [D. C.], 1 N. B. News, 304; S. c. 92 Fed. Rep. 896). Its business is never settled so long as firm debts remain unpaid, though the firm assets have been swept away (In re Levy [D. C.], 95 Fed. Rep. 812). Yet, proceeding individually, any member of a firm may be adjudged bankrupt and obtain a discharge of his individual liability, and also of his partnership liability, even though his copartners be refused a discharge (In re George & Proctor, 1 Lowell, 409; in re Schofield, 3 B. R. 551; in re Downing, 3 B. R. 748; s. c. 1 Dill. 33), or if they oppose the bankruptcy of the copartnership after its dissolution, though its debts are outlawed (In re Richman & Levy [D. C], 1 N. B. News, 287). A liquidating partner who makes an assignment of the firm's property commits an act of bankruptcy for which he may be adjudged bankrupt individually, his copartner not being so liable (Chemical Nat Bank v. Meyer, supra). Whenever a husband and wife are jointly liable under the law of their residence or domicile, they may file a partnership petition in bankruptcy (In re Ray [D. C., Wash.], 1 N. B. News, 276), and they may undoubtedly do so in states where community law prevails, that is, where, after coverature, property acquired vests in the husband and wife jointly. (See 1 N. B. News, 192.) It should be remembered in this connection that where the law is silent, as in this instance, equity practice prevails, and whatever is true as to voluntary petitions will apply to involuntary ones.

If two persons are jointly liable upon an obligation and one goes into bankruptcy, the other who pays the full obligation after the petition is filed cannot offset a debt which he owes the bankrupt against the bankrupt's share of the joint obligation; he must pay the full amount of his debt to the trustee and the trustee should pay him a dividend on the bankrupt's share of the partnership claim so paid (In re Bingham [D. C.], 1 N. B. News, 351; s. c. 94 Fed. Rep. 796). See index infra petition, specifications and dividend also 14 and notes relating to the discharge of partners on firm and individual petitions.

Though the partnership, as such, may be adjudged bankrupt, if one of its members be an infant, such infant cannot be so adjudged individually (In re Duquid et al. [D. C.], 100 Fed. Rep. 274). A petition filed against one partner individually will not authorize an adjudication of others who were partners with him, even though they voluntarily appear and consent to such adjudication (Mahoney et al. v. Ward [D. C.], 100 Fed. Rep. 278).

The bankruptcy court has jurisdiction of a petition filed by a surviving partner though the partnership effects are in course of administration in a State court, if such effects can be obtained by the referee without forcibly interfering with the custody of the administrator (In re Pierce [D. C.], 102 Fed. Rep. 977).

2See 844 as to appointment, 245 as to qualifications, 846 as to death or removal, 847 as to duties, 48 as to compensation, 49 as to accounts and papers of, and 850 as to bonds of trustee.

c The court of bankruptcy which has jurisdiction of one of the partners may have jurisdiction of all the partners' and of the administration of the partnership and individual property.2

d The trustee shall keep separate accounts of the partnership property and of the property belonging to the individual partners.

e The expenses shall be paid from the partnership property and the individual property in such proportions as the court shall determine. 3

f The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts. Should any surplus remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus shall be added to the assets of the individual partners in the proportion of their respective interests in the partnership.

g The court may permit the proof of the claims of the partnership estate against the individual estates, and vice versa, and may marshal the assets of the partnership

This subdivision evidently refers to proceedings to adjudge the firm and all the members bankrupt, and the jurisdiction must be within the meaning of 2 (1). See in re Boylan, 1 B. R. 2.

2The court of bankruptcy will determine what is and what is not partnership and individual property when that question is raised (Hiscock v. Green, 12 B R. 507; Osborn v. McBride, 16 B. R. 22; s. c. 3 Saw. 570).

'See 262 relative to expenses of administering estates.

'When all the members of a firm sign an obligation in their individual names, the weight of authority is that the debt is individual as to each, and not partnership (In re Webb, 2 B. R. 614; in re Bucyrus Machine Co., 5 B. R. 303; in re Miller, 1 N. Y. Leg. Obs. 38; in re Herrick, 13 B. R. 312; in re Roddin, 6 Biss. 377), though this rule is not uniform (In re Warren, 2 Ware. 322).

"See 57 as to proof and allowance of claims, 63 as to debts which may be proved, and 64 as to debts which have priority.