engaged chiefly in farming or the tillage of the soil,16 against any unincorporated company, and any moneyed, business or commercial corporation, except a municipal railroad, insurance or banking corporation; owing debts to the amount of one thou "an individual who works for wages, salary, or hire, at a rate of compensation not exceeding $1,500 a year." 30 St. at L. 544, § 1. This implies service for another which is substantially exclusive. Virginia-Carolina Chemical Co. v. Shelhorse, C. C. A., 228 Fed. 493. The fact that a person furnishes his own tools or his own team, wagon and plow, does not make him any less a wage-earner, if he otherwise falls within the statutory description. Re Yoder, 127 Fed. 894. It has been held that the following persons are not wage-earners: a music teacher, or persons engaged in professional occupations. First Nat. Bank v. Barnum, 160 Fed. 245; the holder of a majority of stock in a corporation, who has a nominal salary of $900 a year, but drew more than that sum from the funds of the company during the year preceding the institution of the proceedings, Carpenter v. Cudd, C. C. A., 174 Fed. 603. See, also, Re Wakefield, 182 Fed. 247. A traveling salesman at a salary of $100 a month with board and lodging while on the road, there being proof that this additional payment was worth $40 a month to him. Re Hurley, 204 Fed. 126; and a man who, while working independently as a manufacturer and trader, earns wages by working for another in a different corporation, Re Naroma Chocolate Co., 178 Fed. 383. 16 Harris v. Tapp, 235 Fed. 918; Re Doroski, 271 Fed. 8. In determining whether a man is chiefly engaged in farming, the court must consider all his activities, the relative amount of time devoted to each, the comparative amount of revenue received and indebtedness in each incurred. Re Brown, C. C. A., 253 Fed. 357. The fact, that the greater amount of the indebtedness was incurred in other business, will usually establish that the individual is not exempt. Ibid. Re Driver, 242 Fed, 956. But see Re Spengler, 238 Fed. 862. It seems that the operation of a packing house creamery and poultry yards is not farming. Re Brown, C. C. A., 253 Fed. 357. Neither is the threshing of grain raised by others. Hart-Parr Co. v. Barkley, C. C. A., 231 Fed. 913. Ownership of a farm leased to another, Wulbern v. Drake, C. C. A., 120 Fed. 493; Re Matson, 123 Fed. 743; or managed by the party's husband, Re Johnson, 149 Fed. 864, 18 Am. B. R. 74; is not sufficient to exempt a person from involuntary bankruptcy. The statute does not protect a man who engages in farming after the abandonment of a business in which he has committed an act of bankruptcy. Re Naroma Chocolate Co., 178 Fed. 383; Re Wakefield, 182 Fed. 247. See, also, Re Kehler, C. C. A., 159 Fed. 55. The fact that a person, chiefly engaged in farming or tillage of the soil, incidentally conducts a small business, Re Terry, 208 Fed. 162; Counts v. Columbus Buggy Co., C. C. A., 210 Fed. 748; Harris v. Tapp, 235 Fed. 918; such as keep sand dollars or over.17 In deciding whether a debtor belongs to the exempt class, his status 18 is usually determined as of the date of the commission of the act of bankruptcy, and the amount of his indebtedness, as of such date.19 The burden of proof, that a person is not within one of the exempted classes rests upon the petitioner, who must plead facts that show it.20 It has been held ing a dairy, where milk is sold at retail, Gregg v. Mitchell, C. C. A., 20 L.R.A. (N.S.) 148, 166 Fed. 725; or buys and sells hogs and cattle, which he has fattened on his farm, Re Dwyer, C. C. A., 184 Fed. 880; Re Thompson, 102 Fed. 287; at least if he does not buy more feed than is raised on the farm for the use of his cattle, Bank of Dearborn v. Matney, 139 Fed. 482, 12 Am. B. R. 482. But see Re Brown, 251 Fed. 365; or keeps a private bank, Couts v. Townsend, 126 Fed. 249; or a store, Re Mackey, 110 Fed. 355; Rise v. Bordner, 140 Fed. 566; or a sales agency, Rise v. Bordner, 140 Fed. 566. See Menke v. Sunderman, C. C. A., 186 Fed. 486; or is in the business of an attorney and collector, Re Hoy, 137 Fed. 175; does not deprive him of his exemption. The classes of corporations subject to the statute are considered in the next section. The court will administer the estate of a member of a firm who is principally engaged in farming and not individually subject to adjudication. Re R. F. Duke & Son, 199 Fed. 199. 17 30 St. at L. 544, 547, § 4. As amended, 36 St. at L. 838. 18 Re Luckhardt, 101 Fed. 807; Re Burgin, 173 Fed. 726, criticised Harv. Law Rev., March, 1910; Re Jacobson, 181 Fed. 870; Re Disney, 219 Fed. 294; Virginia-Carolina Chemical Co. v. Shelhorse, C. C. A., 228 Fed. 493. 19 Re Jacobson, 181 Fed. 870. When determining the right to an exemption the amount of indebtedness must be determined. Where, subsequent to an assignment for the benefit of creditors and before the filing of a petition in involuntary bankruptcy, the debtor made a settlement with certain creditors and received a release discharging him, in return for the payment of a percentage of their claims, leaving the amount due those who did not agree to the settlement less than $1,000; it was held that he might be adjudicated a bankrupt. Ibid. See .20 Re Pilger, 118 Fed. 206. Am. Agricultural Chemical Co. v. Brinkley, C. C. A., 194 Fed. 411. But see Re Leland, 185 Fed. 830; where the evidence was held to be insufficient to show an exemption. Ordinarily, the primary burden to show that the alleged bankrupt does not belong to the exempt classes is upon the petitioning creditors. Where it was shown that the debtor had left his farm more than fourteen years previously and engaged in another business, it was held that those opposing the adjudication had the burden to show that he belonged to the exempt class when the acts of bankruptcy were committed Dr the petition filed. Re Luckhardt, 101 Fed. 807; Re Burgin, 173 Fed. 726, criticised Harv. Law Rev., March, 1910; Re Jacobson, 181 Fed. 870. The exemption is not forfeited by making a gen that the objection that a person is exempt from bankruptcy cannot be waived either by himself,21 or by a creditor; 22 but the allegation is not essential to the jurisdiction, and its omission may be waived by failure duly to object thereto.28 "The death or insanity of the bankrupt shall not abate the proceedings, but the same shall be conducted and concluded in the same manner, so far as possible, as though he had not died or become insane: Provided, that in case of death the widow and children shall be entitled to all rights of dower and allowance fixed by the laws of the State of the bankrupt's residence." 24 § 617. Corporations who may be bankrupts. A corporation cannot be a voluntary bankrupt. Any unincorporated company and any moneyed business or commercial corporation, except a municipal, railroad, insurance, or banking corporation, owing debts to the amount of one thousand dollars or over, may be adjudged an involuntary bankrupt; 2 but bankruptcy of a eral assignment for the benefit of creditors. Olive v. Armour & Co., C. C. A., 21 L.R.A. (N.S.) 109, 167 Fed. 517. 21 Re Taylor, C. C. A., 102 Fed. 728. 22 Re New England Breeders' Club, 165 Fed. 517. But see Re Worsham, C. C. A., 142 Fed. 121; Re First Nat. Bank of Belle Fourche, C. C. A., 152 Fed. 64; Re Broadway Savings Trust Co., C. C. A., 152 Fed. 152. 23 Re Worsham, C. C. A., 142 Fed. 121; Re First Nat. Bank of Belle' Fourche, C. C. A., 152 Fed. 64; Re Broadway Savings Trust Co., C. C. A., 152 Fed. 152. 24 St. at L. 544, 549, § 8. § 617. 130 St. at L. 544, § 4a; Remington on Bankruptcy, §§ 37, 44; Brandenburg on Bankruptcy, §§ 113-119. 230 St. at L. 544, 547, § 4, as amended 32 St. at L. 797, 36 St. at L. 838. Corporations are subject to involuntary bankruptcy when engaged in leasing their own property and collecting rents, Re R. L. Radke Co., 193 Fed. 735; and, it has been held, when buying and reselling electricity, Re Charles Town Light & Power Co., 183 Fed. 160. Contra, Re Hudson River El. Power Co., 173 Fed. 934, decided before the last amendment, where the corporation had a franchise to use the streets for the transmission of gas and electricity which it manufactured and sold to customers. It has been said that ordinarily an electric street railway company is not a railroad corporation and is consequently not accepted from the operation of the statute, Re Grafton Gas & Electric Light Co., 253 Fed. 668; and that a corporation operating a plant to generate and sell the electricity is not. Ibid. Contra, Re Wilkes-Barre Light Co., 224 Fed. 248. In the Northern District of New York an Odd Fellow was allowed to file a petition of voluntary bankruptcy. Re Carthage corporation does not release its officers, directors or stockholders, as such, from any liability under the laws of a State or of a Territory or of the United States. The principal business in which the corporation is engaged is that which determines the jurisdiction. Incidental occupation in one of the specified pursuits is not sufficient.5 Where a corporation is engaged in several different occupations, some of which are within the specified classes, and others not, if its principal business is in several occupations, which subject it to the bankruptcy law; it may be adjudged an involuntary bankrupt, although it is not principally engaged in any single one of them. The test is the actual occupation at the time of the filing of the petition or the commission of the acts of bankruptcy; not the provisions in the charter upon the subject.8 But the burden of proof is upon the parties who contend that the corporation is not principally engaged in the occupations therein specified. The preparation for work in one of the specified classes is equivalent to engagement in the same, although it has not actually begun the transaction of any of the business.10 It has been said that, in general, quasi-public corporations clothed with the power of eminent domain should not, on grounds of public policy, be adjudged bankrupts.11 The bankruptcy proceedings are not defeated because the corporation has, before the filing of the Lodge, No. 365, I. O. O. F., 230 3 30 Stat. 544, 547, § 4, as amended 32 St. at L. 797, 36 St. at L. 838. 4 Re Culgin-Pace Contracting Co., 224 Fed. 245. 5 Re New York & Westchester Water Co., 98 Fed. 711, 3 Am. B. R. 508; Re Chicago-Joplin Lead & Zinc Co., 104 Fed. 67, 4 Am. B. R. 712; Philpot v. O'Brien, C. C. A., 126 Fed. 167, 11 Am. B. R. 205, affirming 121 Fed. 139, 10 Am. B.' R. 424; McNamara v. Helena Coal Co., 5 Am. B. R. 48; Remington on Bankruptcy, § 85. 6 Burdick v. Dillon, C. C. A., 144 Fed. 737, 16 Am. B. R. 407. 7 Re Interstate Paving Co., 171 Fed. 604; Cate v. Connell, C. C. A., 173 Fed. 445. . 8 Re Chicago-Joplin Lead & Zinc Co., 104 Fed. 67, 4 Am: B. R. 712; Re Tontine Surety Co., 116 Fed. 401, 8 Am. B. R. 421; Cate v. Connell, C. C. A., 173 Fed. 445; Remington on Bankruptcy, § 87. 9 Philpot v. O'Brien, C. C. A., 126 Fed. 167, 11 Am. B. R. 205; · Remington on Bankruptcy, § 87. 10 White Mountain Paper Co. v. Morse & Co., C. C. A., 127 Fed. 643, 11 Am. B. R. 633; Remington on Bankruptcy, § 87. 11 Re Bay City Irrigation Co., 135 Fed. 850, 14 Am. B. R. 370; Re Wilkes-Barre Light Co., 224 Fed. 248; Remington on Bankruptcy, § 89. petition, for any reason ceased the transaction of the business in which it was engaged when it became indebted to the petitioner; 12 although the cease was caused by the appointment of receivers, 13 or by the forfeiture of the corporate franchise,14 or by State insolvency proceedings which have decreed the dissolution of the corporation but have not yet terminated it.15 It has been held that an order of a court of bankruptcy appointing a receiver of a corporation which is not subject to bankruptcy is not void for want of jurisdiction.16 § 617a. Bankruptcy of unincorporated associations. An unincorporated company or association may become a bankrupt.1 So may a fraternal beneficial association with no stock and no substantial assets except assessments paid by its members for death or sick benefits; 2 or a trust association the legal title to the property of which is held by a trustee for the benefit of holders of certificates. It has been held that an association claiming to act as a corporation, which has not been legally incorporated, can be forced into involuntary bankruptcy. The fact that a partnership or unincorporated association was formed under a State statute, to carry on a bank, does not prevent its being adjudged a bankrupt.5 A partnership is not an unincorporated association within the meaning of the statute. 12 Re Storm, 102 Fed. 618, 4 Am. B. R. 601; Scheuer v. Smith & Montgomery Book & Stationery Co., C. C. A., 112 Fed. 407, 412; Re Storck Lumber Co., 114 Fed. 860, 8 Am. B. R. 86; White Mountain Paper Co. v. Morse & Co., C. C. A.,. 127 Fed. 643; Re International Coal Min. Co., 143 Fed. 665, 16 Am. B. R. 309; Robertson v. Union Potteries Co., 177 Fed. 279; Remington on Bankruptcy, § 9. 18 Re Moench & Sons' Co., 123 Fed. 965, 12 Am. B. R. 240; Tiffany v. La Plume Condensed Milk Co., 141 Fed. 444. 14 Re Double Star Brick Co., 210 Fed. 980. 15 Cresson & Clearfield Coal & Coke Co. v. Stauffer, C. C. A., 148 Fed. 981. 16 Re Wilkes-Barre Light Co., 235 Fed. 807. § 617a. 130 St. at L. 544, 547, § 4, as amended, 36 St. at L. 838; Davis v. Stephens, 104 Fed. 235; Re Hercules Atkin Co., 133 Fed. 813; Burkhart v. German-American Bank, 137 Fed. 958; Re Seaboard Fire Underwriters, 137 Fed. 987, 13 Am. B. R. 722. 2 Re Order of Sparta, C. C. A., 242 Fed. 235, affirming 238 Fed. 437. 3 Re Associated Trust, 222 Fed. 1012. 4 Davis v. Stephens, 104 Fed. 235. 5 Burkhart v. German-American Bank, 137 Fed. 958. 6 H. D. Still's Sons v. Am. Nat. Bank, C. C. A., 209 Fed. 749. |