§ 618. 1 When a partnership is engaged chiefly in farming or in the tilling of the soil, it cannot be adjudged a bankrupt. Re Terry, 208 Fed. 162; H. D. Still's Sons v. American Nat. Bank, C. C. A., 209 Fed. 749. See supra, § 616. The burden of proof as to the existence of a partnership rests upon the petitioners. Jones v. Burnham, Williams & Co., C. C. A., 138 Fed. 986, 15 Am. B. R. 85. For what is sufficient evidence, see Re Keystone Vulcanizing Co., 233 Fed. 171; Remington on Bankruptcy, § 63 and cases cited. A firm in which one partner is a minor may be adjudged a bankrupt where he has taken no action to repudiate the relation. Jennings v. William A. Stannus & Son, C. C. A., 191 Fed. 347. It has been held that a partnership may be adjudged bankrupt in the name of an ostensible partner, under whose name the firm transacted business. Remington on Bankruptcy, § 63, citing: Jones v. Burnham, Williams & Co., C. C. A., 138 Fed. 986, 12 Am. B. R. 453. But in the case of an ostensible partnership, where an individual transacted business under a firm name, the proceedings should be against him individually; and the creditors, whose obligations were incurred in that business, share equally in all his assets with those whose obligations were otherwise incurred by him. Re Stein & Co., C. C. A., 127 Fed. 547, 11 Am. B. R. 536; Re Gibson, 191 Fed. 665. In such a case, it is within the discretion of

the court to permit a petition, filed against such an alleged partnership and its two ostensible members, to be amended by dismissing it as regards the firm and the defendant who is not actually interested in the business. Re Richardson, 192

Fed. 50.

2 In either voluntary, Re Hirsch, 97 Fed. 571, or involuntary proceedings, Mather v. Coe, 92 Fed. 333; Bank v. Meyer, 92 Fed. 896; Re Meyer, C. C. A., 98 Fed. 976. Proceedings may be instituted to declare a partnership a bankrupt at any time, so long as there are any undistributed assets; Re Boynton, 10 Fed. 277; Brandenburg on Bankruptcy (2d ed.), 78, citing: Re Kaiy Chung, 1 N. B. N. 22; Holmes v. Baker & Hamilton, C. C. A., 160 Fed. 922, or unpaid debts of the firm; Re Levy & Richman, 95 Fed. 812, 2 Am. B. R. 21; v. Baker & Hamilton, C. C. Fed. 922. But not, in the indebtedness created by against the partners, because of the transaction of business in the firm name after a dissolution.

Holmes

A., 160

case of estoppel

Re Pin

son & Co., 180 Fed. 787. The transfer of the firm property to an assignee for the benefit of creditors more than five months prior to the filing of a voluntary petition in bankruptcy, by one or more of the members, is no defense to such petition. Re J. M. Ceballos & Co., 161 Fed. 445.

A partnership may be adjudged bankrupt after the death or insanity of a partner, when the survivor has

4 Schall v. Camors, 251 U. S. 239; Re Terens, 175 Fed. 495; Re Filmar, C. C. A., 177 Fed. 170; Re Telfer, C. C. A., 184 Fed. 224; Re Effinger, 184 Fed. 728; Re Collins, 215 Fed. 247; Re Stringer, 234 Fed. 454; Re Biehl, 237 Fed. 720; Re W. S. Kuhn & Co., 241 Fed. 935; Robinson v. Seaboard Nat. Bank of N. Y., C. C. A., 247 Fed. 667. The same principles are applied when the members of a firm are composed of natural persons in another partnership. The latter is treated as if it were an individual partner in the former firm. Re Knowlton & Co., 196 Fed. 837; aff'd C. C. A., 202 Fed. 480. The reduction of the claims to judg ment does not change their character and they will be marshaled in accordance with their original equities. Re F. J. Hacker & Co., 225 Fed. 869; Cutler Hardware Co. v. Hacker, C. C. A., 238 Fed. 146. Where judgments against a firm, in favor of certain of its creditors, were brought up by one of the partners, who took assignments of the judgments to himself, it was held that he thereby became a creditor of each of his copartners for their respective shares of the money advanced by him in purchasing the judgments, and was entitled to prove a claim for such share against the individual estate of one of the copartners in bankruptcy. Re Carmichael, 96 Fed. 594. Where a firm was dissolved by a sale of the interest of one of the partners to

the other more than four months before the latter became a bankrupt, and in the meantime firm creditors secured judgments against the firm, these were not permitted to enforce executions against the property which had previously belonged to the partnership, and which had passed into the custody of the bankruptcy court, but were obliged to enforce their rights and equities in the bankruptcy proceedings. Re Suprenant, 217 Fed. 470.

5 A transfer of his interest in the firm by one partner to another does not deprive partnership creditors of their right to a priority in the distribution of the partnership assets. Re Filmar, C. C. A., 177 Fed. 170; Re Terens, 175 Fed. 495; Re Young, 223 Fed. 659; Re Fackelman, 248 Fed. 565. It has been held that such a transaction when made for a valuable consideration during the solvency of the partnership relieves the property from the payment of the firm's debts. Rapple v. Dutton, C. C. A., 226 Fed. 430; Stringer v. Stevenson, C. C. A., 240 Fed. 892; but the dissolution of an insolvent partnership and a division of the assets between the partners will be set aside when it gives the individual creditors a preference over the creditors of the firm. Re Head, 114 Fed. 489. But see Worrell v. Whitney, 179 Fed. 1014; Re L. M. Alleman Hardware Co., C. C. A., 181 Fed. 810; Ryan v. Cavanagh, 238 Fed. 604; infra, § 644.

6 Where the firm alone is adjudicated a bankrupt, the assets of the individual members are administered in the same proceeding. Re Meyer, C. C. A., 98 Fed. 976, 979, 3 Am. B. R. 559; Dickas v. Barnes, C. C. A., 140 Fed. 849, 15 Am. B. R. 566; Re Perlhefter, 177 Fed. 299; Re Lattimer, 174 Fed. 824; Menke v. Sunderman, C. C. A., 186 Fed. 486; Francis v. McNeal, C. C. A., 186 Fed. 481, aff'd 228 U. S. 695. Where the partners as well as the firm are so adjudged, the respective assets are marshaled in accordance with equitable principles. Re Filmar, C. C. A., 177 Fed. 170. When the State laws grant exemptions out of partnership property they will be followed by the court of bankruptcy. Re Solomon & Johnson, 254 Fed. 503; infra, § 650.

730 St. at L. 544, 547, Re Solomon & Carvel, 163 Fed. 140; Re Levy, 95 Fed. 812; Re Teller, C. C. A., 184 Fed. 224. This, it has been said, is limited in its effect to cases in which the partnership is not adjudicated bankrupt and one or more, but not all, of the members are so adjudicated. Re Junck & Balthazard, 169 Fed. 481; Francis v. McNeal, C. C. A., 186 Fed. 481; Armstrong v. Fisher, C. C. A., 224 Fed. 97. The trustee in bankruptcy of one of the members of the firm cannot interfere with the

firm assets, Re Mercur, C. C. A., 122 Fed. 384, but it has been held that he may prove against them the amount of the proceeds of his bankrupt's individual property, previously mortgaged for the payment of a firm debt and appropriated for that purpose. Re Effinger, 184 Fed. 728. See § 647, infra. But see Sargent v. Blake, C. C. A., 160 Fed. 57, 644, infra. A solvent partner, upon the bankruptcy of his associate, is a creditor to the extent of any balance that would be due him upon an accounting; and he may prove such a claim, Re Effinger, 184 Fed. 728; Re Hirth, 189 Fed. 926. Contra, Re Walker, 176 Fed. 455; Re Stevens, 104 Fed. 323, but not a claim for reimbursement of the amount expended by him in liquidating the firm debts in excess of his share of the deficiency in the firm assets, Re Walker, 176 Fed. 455. See Re Tassinari, 249 Fed. 989. Where a partnership and its members are bankrupt and the individual estate of one of these is more than enough to pay his individual indebtedness, the claim of an individual creditor for interest accruing after the filing of the petition in bankruptcy cannot be proved so as to be entitled to a priority as against partnership creditors in the distribution of such individual assets. Re Chandler, C. C. A., 184

Fed. 887, that an accounting and settlement of the partnership affairs may be had before the referee in bankruptcy, Re Hirth, 189 Fed. 926. A partnership cannot be adjudicated a compulsory bankrupt so long as one of its members is solvent to the extent that he has more than sufficient property to pay his personal debts and those for which he is liable as a member of the firm. Re Samuels, C. C. A., 215 Fed. 845, reversing 207 Fed. 195; Re Kobre, 224 Fed. 106; see Re Harris, 108 Fed. 517, 4 Am. B. R. 132; Re Perlhefter, 177 Fed. 299; Francis v. McNeal, C. C. A., 186 Fed. 481; Remington on Bankruptcy, § 62. Contra, Re Solomon & Carvel, 163 Fed. 140. It has been said, that the same rule applies in a voluntary proceeding. Re Hansley & Adams, 228 Fed. 564; but that the firm may be declared a bankrupt without at the same time declaring the bankruptcy of all the partners. Ibid. Where the partnership and all but one of its members were insolvent while the assets of the solvent partner together with the partnership assets, although sufficient in amount at a fair valuation to pay the firm debts as well as his own, appeared to be insufficient for this if administered in bankruptcy; upon his consent the firm and the other partners were adjudicated bankrupts; his individual assets were administered by the court together with those of his partners and of the firm, and he was appointed trustee. Re Kobre, 224 Fed. 106. The act of a bankrupt in surrendering to his trustee property belonging to a firm of which he is a member does not

enlarge the jurisdiction of the court of bankruptcy so that it may administer the firm assets when the solvent partner does not Consent. Marnet Oil & Gas Co. v. Staley, C. C. A., 218 Fed. 45.

8 All the partners need not join in a voluntary petition of bankruptcy. Re Murray, 90 Fed. 600, 3 Am. B. R. 601; Re Carleton, 115 Fed. 246, 8 Am. B. R. 270

or in

Carle

Re J. M. Ceballos & Co., 161 Fed. 445; Re Hansley & Adams, 228 Fed. 564. When they do not, it has been said that no act of bankruptcy solvency need be alleged. Re ton, 115 Fed. 246, 8 Am. B. R. 270; Re Forbes, 128 Fed. 137, 11 Am. B. R. 787, 791; Med sker v. Bonebrake, 108 U. S. 66, 27 L. ed. 654, 2 Sup. Ct. 351; Re Murray, 96 Fed. 600, 3 Am. B. R. 601; Re Carleton, 115 Fed. 246, 8 Am. B. R. 270; Re Carleton, 131 Fed. 146, 12 Am. B. R. 475; Re Junck & Balthazard, 169 Fed. 481; Re J. M. Ceballos & Co., 161 Fed. 445. A creditor of a partnership may join in the petition for involuntary bankruptcy against one of the partners individually. Re Mercur, 95 Fed. 634. It has been held, that it is not necessary to allege the insolvency of the individual partners, nor that the solvent part ners, if any, consent to the adjudication. Re Everybody's Grocery & Meat Market, 173 Fed. 492. When a single partner files a petition in bankruptcy against the firm, he must clearly show; that that is the purpose of the petition; that the other partners, if any, are joined; and that he seeks discharge from the firm debts, as well as, if he seeks