
    *Sale v. Dishman’s Ex’ors.
    March, 1832.
    (Absent Brooke, J.)
    Partnership — Bond Executed by One Hember — Liability of Other ¡lembers. — Though a bond or covenant executed by one partner of a mercantile house, in the name of the firm, for a debt of the partnership, is not binding on his copartner who did not seal the instrument, yet the debt being originally a debt of the concern both partners are liable for it to the creditor.
    Same — Liability of Estate of Deceased riember.— And though tb e surviving partner of a mercantile house is alone liable at law to the creditors of the house, yet if the surviving partner prove insolvent, the estate of the deceased partner is liable, in equity, for the debts of the partnership.
    Same — Same—What Amount of Laches Will Exonerate —Quiere—what degree or kind of laches of the creditor, or dealing between him and the surviving partner, in respect of the debt claimed of the partnership, will suffice to exonerate the estate of the deceased partner from the debt.
    Same — Same—Diligence Required of Creditor in Enforcing Claim. — It seems, mere delay of the creditor to assert and prosecute his demand against the surviving partner, will not suffice to exonerate the estate of the deceased partner. And there is no analogy between the duty of creditor in such case to assert and prosecute his claim against the surviving partner, and the due diligence which the assignee of a bond is bound to exert against the obligor, in order to entitle him to recourse against the assignor._
    Newton Berryman and James Dishman were merchants and partners at Port Royal, trading under the firm of Berryman & Dish-man, though it appeared, that, in fact, Dishman had only permitted his name to be used as one of the firm, in order to give Berryman credit, and had advanced him. about 500 dollars in money, which he was to receive back, with interest, without regard to the profit or loss of the trade. In March 1812, a contract was made between William Sale and Berryman & Dishman, whereby Sale agreed to sell and deliver to. Berryman and Dishman, between 600 and 700 barrels of indian corn, and Berryman & Dishman agreed to pay Sale for the corn, four dollars per barrel, on or before the 1st January 1813. This contract was evidenced by covenant signed and sealed by Sale, and by Berryman alone in the name of the firm of Berryman & Dishman. But, it appeared, .that Dishman. had advised Berryman to purchase the corn. Under this contract, *Sale delivered Berryman & Dishman 688 barrels of corn. The partnership of Berryman & Dishman was dissolved in April 1812;. and public notice was given of the dissolution, and all persons having claims against the firm, were requested to present them to Berryman for settlement and payment. Dishman died in June 1813. And, on the 23rd April 1814, upon a settlement of accounts between Sale and the surviving partner Berryman, there was a balance found due to Sale, on account of the corn, of 1320 dollars; for which Berryman gave his. bond to Sale, who, however, declared, at the time he took it, that he would not give up his recourse against Dishman’s estate.
    In February 1819, Sale exhibited his bill, in the superiour court of chancery of Fred-ericksburg, against Berryman, and Austin Smith and George White executors of Dish-man, setting forth the facts, as above stated, and that Berryman was now utterly insolvent; alleging, that the corn had been sold and delivered to Berryman & Dishman, and chiefly, in fact, upon the credit of Dishman; insisting, that, though Berry-man’s covenant signed and sealed in the name of the firm, was not Dishman’s deed, yet, independently of that covenant, the partnership was bound to pay the value of the corn sold and delivered to it; and that, though the claim could onlj- be enforced against the surviving partner, at law, yet, in equity, the estate of the deceased partner was liable for the debt: and pra3'ing a decree for it against Dishman’s executors.
    Dishman’s executors, in their answers, set forth the terms of the connexion between their testator and Berryman, and said that Dishman was only a nominal partner; that Sale had in fact dealt with Berryman alone; and that upon the dissolution of the partnership, all the social effects were - left in Berryman’s hands, to meet its engagements : and they insisted, that, under the circumstances of the case, Sale, having after the dissolution of the partnership, and after Dishman’s death, taken Berry-man’s bond for the balance due him on account of the corn, thereby precluded himself *from all recourse against Dishman’s estate. They did not plead, or otherwise rely on, the statute of limitations, in their defence. Neither did they allege, that Sale, by a prompt and timely assertion and prosecution of his •claim against Berryman, might have recovered the debt of him, before he became insolvent.
    Berryman’s answer also stated the terms ■of his connexion with Dishman, and gave a detailed account of the transaction with Sale; and he alleged, that he was entitled to credits for effects assigned to Sale, the proceeds of which were to be applied towards the discharge of this debt.
    The facts of the case, as above stated, were fully proved. It was admitted by Dish-man’s executors, that Berryman had become insolvent before this suit was brought by Sale. Dishman’s executors tiled copies of sundry executions sued out by sundry creditors against Berryman, and of sundry mortgages of property executed by Berry-man to secure debts due by him to other creditors, in 1815 and 1816; whereby it appeared, that, in the course of those two years, executions to a larger amount than Sale’s claim, had been satisfied out of Berry-man’s property, and that he had, besides, mortgaged other property to other creditors, to a yet larger amount in value.
    The chancellor dismissed the bill; and Sale appealed from the decree to this court.
    The cause was argued here by Stanard and Johnson for the appellant, and Leigh for the appellees;
    but it was more fully discussed by the judges.
    
      
      Partnership — Bond Executed by One Member of the Firm — Liability of Other Members. — On this question the principal case was cited in Weaver v. Tapscott, 9 Leigh 427, 430, 432, and foot-note; foot-note to McCullough v. Sommerville, 8 Leigh 415; Ward v. Motter, 2 Rob. 552, 567; Morris v. Morris, 4 Gratt. 327; Brooke v. Washington, 8 Gratt. 254, 257; Niday v. Harvey, 9 Gratt. 470; Baylor v. Dejarnette, 13 Gratt. 172; McArthur v. Chase, 13 Gratt. 704; Black v. Campbell, 6 W. Va. 64; Gordon v. Funkhouser. 100 Va. 675, 42 S. E. Rep. 679.
    
    
      
      Same — Death of One Member of Firm — Liability of Estate. — See, on this question, citing the principal case, Galt v. Calland, 7 Leigh 601, 603, and note; foot-note to Jackson v. King, 8 Leigh 689; J ackson v. King, 12 Gratt. 508, 510, 513; Glazebrook v. Harveys, 1 Va. Dec. 270; Powell v. White, 11 Leigh 329.
    
    
      
      Same -Same — Laches.—The principal case is cited in Coles v. Ballard. 78 Va. 148. In Welfley v. Shenandoah, I., L., M. & M. Co., 83 Va. 771, 3 S. E. Rep. 376, the principal case is cited to the point that a court of equity can only decree upon the case made by the pleadings.
      And in Whittaker v. Southwest Va. Imp. Co., 34 W. Va. 229, 12 S. E. Rep. 511, it is said: “Next as to the defense of laches. It is argued that as this defense is not made in the answer, the defendant cannot have its benefit on demurrer. This position is sought to be sustained by the language of the judges in Sale v. Dishman, 3 Leigh 548; but it cannot be sustained, for it is opposed to the case of Jackson v. Hull, 21 W. Va. 601, wherein Judge Snyder says that 'it is now the clearly-established rule in equity that the statute of limitations, or objections in analogy to it upon the ground of laches, may be taken advantage of by demurrer as well as by plea.’ This language is the text of 1 Daniel, Ch. Pr. p. 559, § 9, where many authorities are cited.”
      See monographic notes on "Partnership" appended to Scott v. Trent, 1 Wash. 77, and “Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
   CASK, J.

The appellees’ counsel objected to the jurisdiction of the court of chancery to give relief upon this bill, and in support of that objection, cited the case of Linney’s adm’r v. Dare’s adm’r, 2 Leigh 588, as resembling this. It is certainly like it m some of its features, but very unlike it in others. We declined the jurisdiction in that case, because at the time of filing the bill, the plaintiff had a perfect *and plain legal remedy, as Ross, one of the obligors bound for the debt, was admitted, on all hands, to be perfectly solvent: in this case, it is admitted on the record, that before Sale’s bill was filed, Berryman was insolvent; so that, in fact, the plaintiff had no remedy at law, when he came into equity. Whether that fact, under the circumstances attending it, will entitle him to relief here, is another question. We know, that one partner cannot by deed bind the firm. The covenant, therefore, entered into by Berryman, for the purchase of the corn, imposed no obligation on Dishman. But it is in proof, that the corn, with his advice and assent, was sold and actually delivered to the firm. This created a debt against the firm, binding Dishman as well as Berryman; a simple contract debt as to Dishman. By the death of Dish-man, this debt survived against Berryman; and the creditor lost all remedy at law against Dishman’s representatives. Berry-man, afterwards, executed his bond for the debt. But neither the death of Dishman, nor the execution of Berryman’s bond, discharged Dishman’s representatives in equity. Their situation, however was materially changed. They were, now, neither primarily nor absolutely liable. Por the authorities relating to this point, and the further view of it there taken, I refer to the case of Linney’s adm’r v. Dare’s adm’r. The books all lay it down, that the first resort of the creditors is to the surviving partner, and if he be not responsible, then they may come upon the estate of the deceased partner in equity. I said, in Linney and Dare, that I had not met with a case, where the creditor had been suffered to come upon the assets of the deceased partner in equity, until he had first sued the surviving partner at law, and shewn a defect of assets, or such partner had been declared bankrupt: but I did not mean to be understood as supposing that there could be no such case. Insolvency may be ascertained just as satisfactorily without a suit as bj’ one; whatever puts the fact beyond a doubt, is sufficient. Here, insolvency before the suit, is admitted. But when it took place, we are not informed. It *is said, with great reason, by lord Eldon in Ex parte Kendal, 17 Ves. 525, 6, that, as this resort to the funds of a deceased partner, is a demand in equity only, it can be enforced only on equitable principles; and that, where the dealing of the creditor with the surviving partners, has been such, as to render this relief inequitable, he will not be relieved. One instance of such aealing, is a course of conduct, shewing that the creditor means to relinquish his remedy against the assets of the deceased, and look exclusively to the surviving partner. I see no such intention in the present case; for when Berry-raan offered Sale his obligation for the money, he refused at first, and finally accepted it, with a declaration, that he had no idea of releasing his claim on Dish-man’s estate. But Sale, with Berryman’s bond in his possession, waited upwards of four years, before he took any step to recover the money: and if Dishman’s executors had put this matter in issue, and shewn us, that, but for this delay, the money might have been made out of Berryman, I strongly incline to think, that this also would have been such conduct, as would have rendered it inequitable to permit his resort to the estate of Dishman; for lord Hardwicke, speaking of this application to equity, in Bishop v. Church, 2 Ves. sr. 107, says 1 ‘The plaintiff must come as from a pure fountain; must shew himself not to be guilty of any laches, much less collusion, turning to the prejudice of the other side, which might be strong enough to rebut that equity set up beyond what the rule of law admits.” But the defendants made no such point in the pleadings; gave no notice of such a defence to their adversary: nor can this be supplied by the documentary evidence touching the point found in the record.

Upon the whole, I think the chancellor’s decree should be reversed, and a decree entered for the appellant.

CABEEL, J.

This is the case of a creditor of a mercantile house, seeking to recover his debt from the representatives of a deceased partner: and the question is, whether he has shewn himself entitled to recover?

*It is an elementary principle, that on the death of one of two or more joint partners in trade, the legal obligation to pay the debts of the house, devolves exclusively on the survivors or survivor. But it is equally true, that the deceased partner, although discharged at law, is regarded, in equity, as still liable for the debt. That liability, however, cannot be made to affect his estate, even in equity, until the surviving partner becomes insolvent. Therefore, the first question in this case, is, whether it sufficiently appears, that the surviving partner was insolvent, before the commencement of the suit ?

There is no particular kind or degree of proof prescribed for establishing the fact of insolvency. In England, it is considered established by the party becoming a bankrupt; so also, by a judgment and execution and a return of nulla bona. But, in the case before us, the insolvency is admitted by the parties, on the record; which precludes the necessity of any other proof, and is of itself the establishment of the fact.

As the act of limitations was neither pleaded, nor any way relied upon, it is unnecessary to inquire, whether it would have been applicable to the case, or whether it would have availed, if it had been pleaded or relied upon. Mere length of time between the death of the deceased partner and the commencement of the suit, cannot avail, except as evidence of payment; and it cannot be pretended, that the time, in this case, was sufficient for this purpose.

Then, the only real question is, whether the creditor is bound to shew, that he has used due diligence in endeavouring to recover the debt from the 'surviving partner ? or to shew, that an early prosecution of the suit against the surviving partner, would have been fruitless ? I am clearly of opinion, that no such obligation rests upon him. The doctrine of due diligence, as between indorser and indorsee, and assignor and assignee, has never been applied as between a creditor of a mercantile house and a deceased partner. The reason is most obvious. The indorser or assignor *is never considered a debtor, or as liable for the debt, until the indorsee or assignee has first shewn that he has used due diligence, and has failed to recover the debt: but the deceased partner is considered, in equity, as originally and equally liable with the surviving partner: and the -doctrine of due diligence can never apply as between joint debtors. That it does not apply, in such a case as the present, is clearly proved by Sleech’s case, 1 Meriv. 563, for, although the delay there was only six months, it would have been as fatal, on the ground of due diligence, as a delay of as many years. Nor does the creditor lose his recourse against the estate of the deceased partner, even if, being requested, he refuses to sue the surviving partner himself, or to permit the representative of the deceased partner to sue in his name : as appears by the case of Bishop v. Church, 2 Ves. sen. 100, 371. The representative of the deceased partner, if he be dissatisfied with the delay, or unwilling to encounter its risk, has his redress in his own hands : he may either pay the debt, or institute a suit against the surviving partner for a settlement of the accounts; or he may, without paying the money, sue the surviving partner and the creditor. It is no objection to the authority of Bishop v. Church, that, in that case, both of the partners had bound themselves by bond, for the payment of the debt. For the bond being only joint, not joint and several, the deceased partner was as much discharged at law, from all obligation to pay the bond, as the deceased partner, in this case, was discharged from the legal obligation 1o pay this simple contract debt. Moreover, if the deceased partner be regarded merely as a surety, he has no more right than other sureties, to demand of the creditor, that he shall sue the principal. And that other sureties have no such right, except under our particular statute, 1 Rev. Code, ch. 116, § 6, p. 461, (which does not extend to a case like this), is clear from the case of Croughton v. Duval, 3 Call, 69.

I do not feel myself required, on the present occasion, to decide, as a general question, what sort of dealing between *the creditor and the surviving partner, or what sort of laches on the part of the creditor, would be sufficient to rebut the equity of the creditor. It is sufficient for the oresent, to say, that, in my opinion, there is nothing, in this case, to impair the claim of the appellant.

TUCKER, P.

It is apparent from the original agreement, signed by Berryman in the name of the firm, for the purchase of the corn from Sale, that the firm was looked to as debtors for the amount. It is natural, that it should have been so, as Eishman lent his name to give credit to the firm. The contract thus signed, and‘(by mistake of received principles, which deny the right of one partner to bind another at law by a seal) being sealed also, was nevertheless binding in equity upon both partners. When, indeed, it appears that the creditor intends to look only to the individual partner, it may be otherwise; but, in equity, the form of the thing is immaterial, if the substance of the contract was to bind both. Thus, even a joint bond is, in equity, after the death of one of the obligors, construed to be several as well as joint; because, in justice, in conscience, and by the intent of the parties, both are debtors. Wherever the real consideration is paid to both, both are bound to make satisfaction, though, through ignorance, the instrument is so drawn as to have another effect at law; and, as there is no legal remedy, a court of conscience will, if it can, reach the effects of the persons borrowing a.nd receiving the money. Bishop v. Church, 2 Ves. sen. 100. In this case, then, the partners were clearly bound by the original contract. Without controverting the case of Tom v. Goodrich, 2 Johns. Rep. 213, which was an action of assumpsit, I think it is evident, that, unless it appears that the note or bond of an individual partner, is designed to be accepted in discharge of the partnership, it will not have that effect in equity. Thus, even if a judgment be obtained against a surviving partner, on notes of the firm, that judgment is, at law, an extinguishment of the original notes (for, transit *in retn adjudicatam) and so in case of a bond, it would be, at law, an extinguishment of the simple contract ; yet, in both cases, it would be in equity a partnership debt still. Jacomb v. Harwood, 2 Ves. sen. 265; Heath v. Percival, 1 P. Wms. 682; Orr v. Chase, 1 Meriv. 729; David v. Ellice, 5 Barn. & Cress. 196, 11 Com. Law Rep. 201. And this principle I understand to be distinctly recognized by this court, in Williams v. Donaghe’s ex’or, 1 Rand. 300, and in Linney’s adm’r v. Dare’s adm’r, 2 Leigh, 588. Now, in the present case, the implication that the taking of Berryman’s bond was intended to absolve the partnership, is not only weakened by the fact that he was the only surviving partner, but it is expressly repelled by Sale’s declaration, at the time, that he would not give up his resort to Dishman’s estate. lithe taking this obligation did not discharge Dishman, the subsequent dealings with Berryman had not that effect.

The principal questions discussed at the bar, respect, 1. the jurisdiction of the court, and 2. the supposed laches of the plaintiff in pursuing Berryman.

On the subject of jurisdiction, I think there is no difficulty. It was admitted, that Berry-man was insolvent, when this suit commenced. No suit at law against him could avail, and therefore none could be required. It is also obvious, that as to Dishman’s estate, the only remedy was in equity.' The case is, therefore, not like Linney and Dare, where the jurisdiction was denied, because the creditor had a complete legal remedy against Ross, the surety, and it was no concern of his to bring the parties into equity, in order to fix the demand on the representatives of the principal. In this case, there is no remedy at law.

The other question is more difficult. The partnership was dissolved in 1812, and in May 1813, Dishman died. Erom that date till 1819, no proceedings were instituted against Berryman, who, in the mean time, became insolvent; and the first suit against him is that which we are now considering, the main design of which is to subject *Dishman’s estate. In the interim, it ■would seem he had parted with valuable property, and had discharged very considerable demands, from which it may be inferred, that this debt might have been recovered of him, if it had been prosecuted immediately.

That the liability of the estate of a deceased partner, is neither immediate nor absolute, seems to be very clear. It cannot be charged at law, but if the surviving partner is not responsible, it is liable in equity. In this case, it is indeed agreed, that Berryman was insolvent when the bill was filed : but the question recurs, whether it suffices to establish an insolvency, contemporary with the suit ? It is contended, that that is not enough ; and that before the deceased partner’s estate can be charged, due diligence must have been used to procure payment from the surviving partner ; and it must appear, that notwithstanding the exertion of such diligence, the debt could not be recovered from him.

Now, in considering this matter, we must bear in mind, that though the common law, deviating herein from the lex mercatoria, holds partnership contracts to produce only a joint obligation because they are joint in form, and considers them as attaching only upon the survivors; yet the courts of equity, following what is apprehended to be the general mercantile law, considers a partnership contract several as well as joint, and binding upon the survivors. Gow’s law of partn. 436, 7. The money is advanced or the goods delivered upon the credit of all the partners. All are presumed to have derived more or less benefit from the transaction ; and the question of more or less, the court will not enter into. Hence the equity to charge the estate of the decedent, though discharged at law : an equity set up beyond what the rule of law admits, which, therefore, may be rebutted, if the party is guilty of fraud or collusion, or even of laches. 2 Ves. sen. 107. What does amount to laches ? is the important question here. “ With respect to the time (says Gow, p. 443,) when the creditors should prosecute their demands against the surviving partners, in order to retain *their right of resorting to the estate of a deceased partner, no rule of convenience exists, which requires them to do it within any assigned or arbitrary limitation.” It seems to have been supposed by some, that it must be done within some very short period of time. But it is very doubtful (as is well observed by the master of the rolls in Sleech’s case, 1 Meriv. 569,) whether the estate of a deceased partner would be benefited by such a rule; since few houses could stand the sudden and concurrent demand, which that rule would necessarily bring upon a surviving partner. A house might be reduced to bankruptcy, which, in the ordinary course of business, might have been able to fulfil its engagements ; and a demand would thus be brought on the estate of the deceased partner, from which it might otherwise have been wholly exempt. Accordingly, in that case, Miss Sleech was held not to have lost her equity by eight months delay. In Lane v. Williams, 2 Vern. 277, 292, the laches was much greater, but did not bar the creditor. In Daniel v. Cross, 3 Ves. 277, it was nearly two years before the bankruptcy of the survivor : and in Hamersley v. Lambert, 2 Johns. Ch. Rep. 508, Hubbell, the deceased partner died in September 1803, and the surviving partner was discharged as an insolvent in October 1807 — an interval of four years. In that case, the delay was held no bar: though chancellor Kent goes, perhaps, too far in saying, that Miss Sleech’s case established the doctrine, that “neither delay, nor lapse of time, nor dealing with the survivor, nor calling for and receiving part of the debt from the survivor, amounts to a waiver or bar of the claim upon the assets of the deceased.” “ It is,” says he, “ in equity a joint and several debt ; and as lord Parker observes in one of the cases, the assets of the deceased must lie at stake, until the bond is *paid.” I rather think, there is no settled rule or analogy yet established upon this subject. To require the same diligence which is demanded in cases of bills of exchange, was very readily considered out of the question. To put the case upon the footing: of the implied coniract for due diligence between an assignor and assignee, would, it appears to me, be pregnant with .the very evil so strongly stated by the master of the rolls in Sleech’s case. . The case of the assignor and assignee, indeed, must always stand upon its own peculiar grounds. The principles established as to the duties of the assignee, have taken a halfway ground between the liability in cases of negotiable instruments, on the one hand, and the duties of a creditor in relation to the surety in a bond, on' the other. They have been laid down for the regulation of this new kind of medium, which has been created by giving validity to the assignment of bonds, and authorizing the assignee to sue in his own name. No fair analogy can be drawn, between the case of the deceased partner and the assignor of a bond. The assignor has parted with his interest, and stands merely as a guarantee : the deceased partner was one of two joint debtors; in his lifetime, he would have had no right to call upon the creditor, •to proceed against his co-partner, or to complain that he had not done so ; and though, ■ after his death, a court of chancery will not charge his estate with the equity, until the insolvency of the survivor is established, yet I am not aware of any express decision, which requires him to proceed within any limited time. He is still the debtor; and the assets of his estate “must lie at stake until his debt be paid.” He was bound to see it paid in his lifetime : he was bound to follow his creditor : his creditor was neither bound to look after him, nor to pursue his partner. At his death, his obligations ought to devolve, with his estate, on his representatives : they ought to press the payment by the surviving partner, or to demand that the creditor should proceed, if danger of his insolvency be apprehended. This would be in strict analogy with the case of the surety in a *bond, who never can charge his creditor with laches, until he'has prompted him in vain to pursue the principal. Considering the decedent’s estate as only bound in equity, courts of equity have indulgently said, it shall not be charged till the surviving partner is insolvent, because the debt ought in justice to be paid, if possible, by the funds of the concern. It treats the deceased partner as a surety only ; and that is going far enough. He is absolved, indeed, by collusion : he is absolved by giving time to the surviving partner, or by new arrangements with him : he may be absolved by failing to sue when required to do so ; but, if there be no such requisition, he is in no sort culpable. This is what is meant by laches, in relation to him. In no other sense, can the cases be reconciled with this expression of lord Hardwicke : his own decision cannot; for in the case of Bishop v. Church, 2 Ves. sen. 100, 371, it appears that Church died in 1740, and Owen, the surviving partner, became bankrupt (as I understand the state of the case) after the creditor Bishop’s death in 1747, and after repeated and unavailing requests by Church’s representatives, that Bishop would sue Owen, or let them sue him : yet lord Hardwicke was of opinion, that he did not lose his recourse, because he was not bound to do so, unless they first paid him his money.

I am, therefore, inclined to the opinion, that though chancellor Kent has attributed to the master of the rolls in Sleech’s case, a stronger expression of opinion than that case will justify, and lays down his own, perhaps, too broadly ; yet it is not going too far to say, that mere delay in instituting proceedings against the surviving partner, will not discharge the de,cedent's estate, unless the creditor has been called upon to institute proceedings for the safety of that estate, and has declined or has failed to do so. Such conduct would justly be held, to rebut the equity which is raised in behalf of a creditor, against a deceased partner.

But, the court consisting, at this time, of .only three members, perhaps it is better to waive the decision of the question *now ; and the rather as it does not seem essential; for I do not think the question of laches is fairly presented. Surely, if the defendants designed to rebut the plaintiff’s equity on the ground of laches, they ought to have charged it, that it might have been fairly inquired into. As they have not done so, the fact should not be regarded as established by the exhibits, which were irregularly filed, since they related to matters not in issue between the parties.

Decree reversed. 
      
      So says the master of the rolls in Sleech’s case: but in the note of the editor of the late edition of Vernon, the case appears to be very incorrectly reported. He states the note to have been a year old: and he details circumstances as appearing- in the case, upon which it might have been decided, without a reference to the principle under discussion. (Note by the judge.)
     