
    The Bank of Port Gibson vs. Thomas W. Baugh et al.
    The dissolution of a partnership disables any one of the partners from contracting new debts, or buying, or selling, or pledging goods on account of the firm.
    "Where, therefore, a surviving partner executed his notes, as such, and had them discounted in bank, and executed a mortgage as surviving partner on partnership property to secure their payment to the bank, it was held, notwithstanding the surviving partner appropriated the money to the discharge of the partnership debts, that neither the notes nor mortgage were obligatory upon the representatives of the deceased partner, and did riot bind his estate.
    Whether, if there had been in the articles of partnership a power vested in the survivor to that end, the rule would have been different, quare ?
    A member of a mercantile partnership provided by his will that his executors might mortgage his estate to raise money to carry on the partnership, and continue the business; he appointed three executors, and provided that they should “ exercise their powers jointly, or with a concurrence of a ma-jorityby a codicil he limited the number of his executors to two, his wife and his surviving mercantile partner, but made no other alteration in his will; after his death the surviving partner continued to carry on the business ; and borrowed money out of bank for the benefit of the partnership, signing the name of the firm to the notes by himself as ' surviving partner, and executed a mortgage on the partnership property in the same way, to secure the notes; held, on a bill by the bank to foreclose the mortgage filed against the executors of the deceased partner and the surviving partner, that the estate of the deceased partner was not bound by the notes and mortgage ; that the surviving partner, as executor, had no authority under the will, without the concurrence of his co-executor to mortgage the property of the estate, nor had he any such power as surviving partner.
    Where a power is conferred, by will, upon two executors, to be jointly exercised, to raise money by notes and mortgage upon the property of the testator for a given purpose, they must unite in the exercise of the power ; the execution of a note and mortgage by one, without the concurrence of the other, will not bind the property of the estate.
    In the discharge of the ordinary duties and powers of administrators or executors, where several are nominated in a will, the act of one will be sufficient and binding on his co-executors; but in the case of a will, where special acts out of the common course of duty of such officers are required, and those acts are confided to be performed jointly by several executors, it seems that they must all unite. In such acts the executor is rather engaged in the exercise of a power, than in performance of the ordinary duties of an executor.
    On appeal from the superior court of chancery. Hon. Robert H. Buckner, judge.
    The Bank of Port Gibson filed their bill against John M, Carpenter and others, in which they state that on the 1st June, 1832, Horace and John Carpenter formed a planting and mercantile copartnership, to be carried on for their joint profit, in the name of H. Carpenter & Co., which went into operation the 1st August, 1832, to continue during their joint pleasure according to the articles exhibited with the bill. That they carried on the partnership until the death of Horace Carpenter on the 27th April, 1836, in a large mercantile and agricultural business. After Horace Carpenter’s death, the business was carried on for the purpose of liquidation and settlements, in the name of H. Carpenter & Co., by John M. Carpenter, 'as surviving partner. In the farming business, the firm had a large stock of negroes and a plantation ; both of which were still the property of H. Carpenter & Co., and remained in the hands of John M. as survivor until the — of May, 1840, at which time they were placed in the hands of William Laughlin as receiver, by decree of the chancery court; that at the death of Horace, the firm was indebted to the amount of $197,000. After his death, John M. Carpenter, as surviving partner, proceeded to pay the firm debts, and to liquidate the same; to make collections and payments of debts, in part and in whole; to renew notes in the name of H. Carpenter & Co.; effect loans for the firm, for the payment of outstanding liabilities; and in general, to do all other acts necessary to effect a speedy settlement of the business of H. Carpenter & Co. That the firm continued to exist after the death of Horace for all purposes of liquidation and settlement. During the years 1838 and 1839, being in want of large amounts of money, from time to time, for the purposes of paying off, liquidating, and arranging a large amount of debt owing by H. Carpenter & Co., contracted in the lifetime of Horace, John Carpenter, as surviving partner, applied to complainants at various times for [the purpose of obtaining loans and discounts. Complainants for that purpose discounted the notes of H. Carpenter & Co. to the amount of $15,000, on the faith of the responsibility of H. Carpenter & Co., believing that that firm was abundantly responsible for all its contracts and liabilities, the proceeds of which discounts were paid over to John M. Carpenter, as surviving partner. In the year 1840, H. Carpenter & Co. having failed to pay and refund to complainants these discounts, or any part thereof, becoming embarrassed, complainants required payment or further security. When John M. Carpenter, as survivor, executed a mortgage on personal property belonging to H. Carpenter & Co.; complainants extending the payment twelve months on the debt, which with interest to May, 1841, amounted to $15,000, for which sum John M. Carpenter executed a note, signed H. Carpenter & Co. per John M. Carpenter, surviving partner; which was accepted by the complainants, and the other liabilities delivered up to John M. Carpenter. On the 4th of May, 1840, John M. Carpenter executed the mortgage, signed “ H. Carpenter & Co. per John M. Carpenter, survivor,” to secure this note of $15,000, on twenty-five negro slaves and their future increase — the property of H. Carpenter & Co., and described by name in the bill, and stated to be in the possession of Mr. Laughlin, receiver, appointed by the chancery court. That the mortgage had become absolute at law, and was a slender security for the debt; that these slaves were capital stock in the firm of H. Carpenter & Co.; John M. Carpenter, as surviving partner, had the exclusive management and control of the partnership property for all purposes of liquidating and settling the debts of H. Carpenter & Co., and as such, had ample power to sell, hypothecate, or mortgage the same, to pay or secure debts of the firm, and as such, did legally mortgage said slaves to complainants. That Horace Carpenter left a last will and testament, appointing Martha M. Carpenter, his widow, executrix, and John M. Carpenter, his executor, a copy of which is exhibited. That the executors qualified, and Martha, in 1839, intermarried with Thomas W. Baugh, who, in right of his wife, became a co-executor. The bill makes proper defendants, and prays in substance that the mortgaged negroes, with their increase, be sold and the debts paid.
    The following are the clauses of the will which bear on the controversy, viz.:
    “Art. 2. I further will and direct, that all my real and personal estate shall be kept together, under the control of my executors, and that no part thereof shall be paid over or distributed to heirs, or distributees, or legatees, until the final extinction of all my debts.
    “Art. 3. In order to avoid any sacrifice of my property, in the settlement of my estate, and that it may be wound up, closed and settled advantageously, and, if necessary, leisurely, I hereby authorize and empower my executors to sell at public or private sale, for cash or on a credit, at their discretion, such proportion or parts of my real or personal estate, as they may deem expedient to pay my debts, or relieve my business, and they are further authorized and advised to sell out by retail or wholesale, the stock of goods on hand, or purchased, at my decease, on such terms as they may deem proper, and even to continue my mercantile business a reasonable time, if they should think it would conduce to the benefit of my estate, and the more easy conclusion of my business. My planting and other operations, such as they may be at my decease, of course, to be managed and continued as nearly as may be deemed advisable, under the present arrangement. And to the end that my executors may accomplish the objects and views proposed in this will, I herein bestow upon them ample powers, hereby enabling them to sign, indorse and accept bills of exchange, promissory notes, and all other instruments, with and without seals; and also to mortgage and hypothecate such portions of my estate, in order to improve their credit and procure facilities for the concern, as they consider provident; and to the end that they may financeer, raise money, and do all other acts that they may consider necessary in continuing and settling my business, that I could myself have done.
    
      “Art. 4. I recommend to my executors as much promptitude in settling and doing my business, and the affairs of the estate, as will be in accordance with the preservation of its interest, leaving to them, however, the discretion of deciding on the expediency of the measures to be adopted in executing the provisions of this will.”
    
      “ Art. 10. I hereby nominate and appoint John M. Carpenter, Adin Davis, and George Irish, executors of this my last will, to carry into execution the powers herein granted; and by reason of the confidence which I have in them I require that, in qualifying themselves herein, they shall not be obliged by the court to give security for their administration.
    “Art. 11. And it is further provided that the said executors shall exercise their powers jointly, or with a concurrence of a majority, and that in the event of death of any, that then the power herein granted shall survive to the survivors jointly, or to the sole survivor. And it is further provided that, in the event of the death of all of the said executors, then, in relation to the settlement of the estate to be concluded, and in all respects where any other individual than said executors may have to act on said estate, I hereby revoke and withhold entirely all the discretionary powers granted in this will, and require that the estate shall be settled up promptly, and under the forms of law, in the same manner as if there were no other provisions than mere bequests made in this will. As the powers of a discretionary nature herein granted are personal trusts, and are not to be executed by other persons than the executors, or some one of them; and are not to survive.
    Given under my hand and seal, this 30th day of May, 1832.
    H. CARPENTER. [SEAL.]
    Signed, sealed, and executed in presence of
    G. M. Smith, J. J. Downing, H. W. Pope.”
    “ Whereas I, Horace Carpenter, of the town of Port Gibson, county of Claiborne, state of Mississippi, have made my last will and testament, in writing, bearing date May 30th, 1832, and have thereby appointed John M. Carpenter, Adin Davis, and George Irish, to be my executors. Now I do by this, my writing, which I hereby declare to be a codicil to my said will, to be taken as a part thereof, will, direct, and appoint, instead, John M. Carpenter, and Martha M. Carpenter, to be the executor and executrix of my said will, to carry the same into execution, and it is my desire that this my present codicil, be annexed to and made a part of my last will and testament, to all intents and purposes.
    In witness whereof, I have hereunto set my hand and seal, this 2d June, 1834.
    H. CARPENTER. [SEAL.]”
    The articles of partnership between Horace and John M. Carpenter, commenced on the 1st day of August, 1832, were to continue during the “joint and several pleasure” of the parties; they were to share equally in the'profits of the partnership, which was to extend to “a planting and mercantile copartnership, to be carried on for their joint profit, in the name of H. Carpenter & Co. in the town of Port Gibson and its vicinity, as nearly as may be after the manner of said business, mercantile and agricultural, as now and heretofore conducted by Horace Carpenter.”
    The bill was taken for confessed against all the parties but Baugh and wife, who filed a general demurrer to the bill; which the chancellor sustained, and ordered the bill to be dismissed as to them. Such a decree was accordingly entered, and the complainants appealed.
    
      J B. Thrasher, for appellants.
    1. The question before the court is, whether or not John M. Carpenter, as survivor, and executor of the deceased, with full authority under the will to do so, had power to sell the personal property of the firm, being capital stock, to pay the debts of the firm, due in the lifetime of the deceased, or to hypothecate, or mortgage it for money to pay said debts. Such are the facts charged in the bill, and admitted by the demurrer.
    This power in the surviving partner and executor, with express authority, under the will, we consider unquestioned, and unquestionable. One of the indisputable cannons of the law of partnership, is the right of each partner to the whole partnership property. Freeman’s Ch. R. 230.
    By virtue of the community of rights and interests in' the partnership stock, funds, and effects, each partner possesses full power and authority to sell, pledge, or otherwise to dispose of the entirety of any particular goods, wares, merchandise, or other personal effects, belonging to the partnership, not merely of his own share thereof, for purposes within the scope of the partnership, but of the entirety. See Story on Part. 130-132, 150; Watson on Part. 91, 93, 2d edit.; Gow on Part. ch. 2, §2, p. 51-54, 2d edit. This principle seems never to have been questioned. Collyer on Part. 217; 8 Leigh’s R. 425; 1 Brock. 456, and authorities cited.
    2. With regard to all personal property, both in possession and in action, each partner necessarily has the same power and control over it, that any individual has over his own property. Miles v. Barber, 4 Day’s R. 430; Lamb v. Durant, 12 Mass, 54; 3 Leigh’s R. 548. If one partner can sell the personal property of the firm, without the consent of the other, he can, undoubtedly, mortgage, pledge, or hypothecate the same: on this point the law is well settled. Story on Part. 150; 8 Leigh’s R. 425; 1 Brock. 456; 1 Nott & McCord, 556; Collyer on Part. 217; 4 McCord, 519; 4 Washington’s C. C. R. 232.
    3. “ Each partner may pledge,” says Judge Story, “ the partnership property, or borrow money for partnership purposes, on the credit of the firm.” See Story on Part. 188, and the numerous authorities therein cited, in support of the principle, to wit: Collyer on Part. B. 3, ch. 1, § 1, p. 263, 267, 290, 291, 2d edit.; 1 Esp. R. 406 ; 5 Mason R. 176; S. C. 5 Peters R. 529; Cowp. R. 445; 5 Wend. R. 223; 4 Johns. R. 251, 265; 2 Bell Comm. R. 7, p. 615, 5th edit.; 3 Kent’s Comm. lect. 43-46, 4th edit.; Gow on Part. ch. 2,-§ 2, p. 56; Watson on Part. ch. 4, p. 195; 5 Mason S. C. R. 156; 2 Cromp. & Jerv. 431.
    
      “If an individual partner borrows,” says Judge Story, “ in his own name for the firm, and it is used for the firm, and the credit or loan is on the faith of the firm, then the firm will be liable.” Story on Part.
    The joint debt of the firm can only be made an individual debt of one of the partners upon a sufficient consideration. An individual note of the individual members of the firm is taken for the firm debt; then to release the firm; the question is, as to the intention of the parties, and sufficiency of the consideration. Story on Part. 524 — 526. ' „
    4. The powers of a sole surviving partner, in this respect, after dissolution of the firm by death, are believed to be still more extensive; at all events, they are as extensive as the powers of an individual partner during the continuance of the firm. The survivor is charged with the settlement of the concern, and payment of the debts, and for this purpose he is entitled to the possession of the partnership property, and to the right to dispose of the same, either to creditors in payment of debts, or to strangers for money to liquidate the debts — the property for this purpose, still continues to be partnership — with all the incidents belonging to that relation, and the sole and unquestionable right in the survivor to sell and dispose of the same for money to pay the debts. See Story on Part. 470, 472, 495, 496 ; Gow on Part. 351, 3d ed.; 6 Cowen, 442; 11 Ves. 5 ; 16 lb. 51; 15 Ib. 227; 4 Harr. <fc Johns. 485 ; 3 Kent, 62, 63 ; 3 Paige Ch. R. 526, is conclusive. Where one of the partners dies, the legal title to the debts and choses in action belonging to the partnership, vests in the surviving partner under the law merchant, and such surviving partner without the assent of the personal representative of the deceased partner, can appropriate the partnership property to the payment of the debts of the firm, “ in such manner, and by giving such preferences as he may think proper.” 3 Paige, 526; Collyer, 352; 1 Dallas, 248 ; 2 Ibid. 65. Inasmuch, therefore, as the partnership still exists, so far as it relates to the liabilities of the property to the debts of the firm, aud inasmuch as the rights and powers of the surviving partner, over the copartnership property for the purposes of liquidation and payment of the debts, are sole, exclusive and complete — we can perceive no objections to the validity of the mortgage executed to the complainant. Paige’s Ch. R. 526, is in point.
    5. An instrument executed by one partner in the name of the firm, even after dissolution of the copartnership, is binding on the partner who executes it. This is a principle well settled, and cannot be controverted. 13 Johns. R. 310; 7 Term R. 207; 3 Johns. Cas. 180; 5 East, 148; 1 Hill R. 577. Then if the mortgage is binding on John M. Carpenter, who executed it as surviving partner, it is binding on the property; and the entirety of the property being vested in him for liquidation, that entirety is conveyed to the complainant by the mortgage. 8 Leigh’s R. 425, and 1 Brock. 456, fully sustains this position; and 3 Paige’s Ch. R. 526, is in point. Indeed the whole current of authorities cited by the representatives of the deceased partner, when properly understood, establish the same principle; they establish that a note signed by one partner in the name of the firm after dissolution, cannot be enforced against the firm in an action at law, and nothing more. We do not seek to enforce the mortgage against the firm at law, but the firm property and surviving partner in a court of equity. In 3 Kent, 63, cited by defendants’ counsel it is said, “ that until the purposes of finishing the prior concern be accomplished, the partnership may be said to continue; ” and further, “ that the surviving partner is alone suable at law, and he is alone entitled to the possession and disposition of the assets, to enable him to discharge the debts, and settle the concern. 3 Kent, 63; 4 Harr. & Johns. 485; 6 Cowen, 441.
    6. Indeed there is a lien on the partnership property independent of the mortgage; or at least an equity not only in favor of creditors of the firm, but in favor of each partner to have the partnership property applied to the due discharge and payment of the debts and liabilities of the firm, before either partner or his representative, can claim any right thereto. In short, as between the partners themselves, the firm property is a fund appropriated in the first instance, to the discharge and payment of such debts and liabilities; and there is, as between them, a lien thereon, or at least an equity, which may be worked out through the partners in favor of creditors, although it may not directly attach in the creditors by virtue of their original claims; but the creditor will be subrogated in equity to the lien of the partner, and most especially, where a specific lien has been given by the surviving partner. Story on Part. 135, 470, 511, 513; 6 Yes. 119, 126, 127; 10 lb. 347; 11 lb. 3; 17 lb. 514; 3 Kent, 65.
    7. This substitution of the creditor to the lien of the partner always takes place where the partner consents, and the execution of the mortgage is evidence of such consent. Story on Part. 511.
    
      George S. Yerger, for appellees.
    1. The question is, whether the said John M. Carpenter, as surviving partner, or as executor, had power and authority, after the death of Horace Carpenter, to create new debts, contract new loans and liabilities in the name of the firm, and thereby bind it, and whether he had power to mortgage or pledge the partnership effects to pay such liabilities.
    It is admitted, that if he had the power to create the debt so as to bind the firm, he would have the power to pledge or mortgage the effects of the firm to secure it. But if it is his individual debt, if he had no power to bind the firm by creating the debt, it follows that it was a fraud on the representatives of the dead partner and the creditors of the firm, to make such a mortgage.
    After the dissolution of the partnership, by death or otherwise, the surviving partner, or any other partner, cannot (although express power is given to him to wind up and settle the business,) bind the other partners, or their representatives, by any new contract, or create any new liability. He cannot borrow money in the name of the firm, or renew notes, &c. If he does, it is an individual debt. He alone is liable. He alone can be sued ; and if he has applied it to the payment of partnership claims, of course he will be entitled to a credit of so much upon his account; but its application cannot create a liability in favor of the creditor against the other members of the firm, or the representatives of the deceased members. The law on this point I consider clearly and indisputably settled. Collyer on Part. 314, note 2; 3 Kent’s Com. 62; 19 Maine R. 355; Willis v. Hill, 2 Dev. & Bait. 231; 1 Stewart R. 354; 1 McCord Ch. R. 175; 19 Maine R. 355; 2 Fairfield, 207;' Story on Part. 458-460, 472; 11 Serg.&Rawle, 41; 11 Wend. 96; 4 Johns. R. 234; 2 Humphreys, 529 ; 1 lb. 51.
    2. The power of a surviving partner, is the same as that of other partners, after dissolution. He can create no new liability. Story on Part. 490 - 493.
    A note signed by a partner in liquidation, is not binding on the other partners. Story on Part. - 468, in note, and cases cited. Or in renewal. Collyer, 314, note 2.
    Even during the existence of the partnership, if one borrows money himself, and in his own name, and applies it to partnership purposes, it does not become a firm debt. 1 Simons, 376; 2 Dev. & Batt. 231.
    3. A surviving partner is a trustee of the effects, only to pay partnership debts, or those for which the firm is liable. 1 Paige, 393; 3 lb. 517.
    He cannot, nor can any partner, pledge or mortgage partnership effects for a debt, which is not chargeable on the firm, or the other partners, or their representatives. 2 Iredell’s Dig. 698.
   Mr. Justice Thacher

delivered the opinion of the court.

The bill in this suit was dismissed in the superior court of chancery, upon the demurrer of the appellees. The bill charges that in 1832, Horace and John M. Carpenter formed a commercial and agricultural copartnership, under the name and style of H. Carpenter & Co., which was to continue during their pleasure; that the copartnership continued until April 27, 1836, at which time Horace Carpenter deceased; that, after his death, the copartnership was carried on by John M. Carpenter, as surviving partner, for the purpose of liquidating and settling the business of the firm, which was then largely indebted; that John M. Carpenter, in pursuit of his design of settling up the business of the firm, in 1838 and 1839, obtained large discounts and loans of money from the bank, in his capacity of surviving partner, upon notes of the firm of H. Carpenter & Co.; that in 1840, the bank, being anxious to obtain security for their loans, which had then reached the amount of $15,000, procured from John M. Carpenter a note in its favor, at twelve months, signed H. Carpenter & Co., per John M. Carpenter, surviving partner, to take up the notes previously given, which note was secured by a mortgage on the property of the firm of H. Carpenter & Co., which was executed by John M. Carpenter, as the surviving partner of H. Carpenter & Co., for the copart-nership ; that Horace Carpenter, in his lifetime, made and published his last will and testament, in which he appointed John M. Carpenter, and his own wife, Martha, since intermarried with Thomas W. Baugh, his executor and executrix, and who both qualified in those capacities. The will originally appointed three persons as executors, and it also provides that the executors shall “ exercise their powers jointly, or with a concurrence of a majority.”

The ground assumed in the bill is, that the note and mortgage were executed by John M. Carpenter, as surviving partner and executor. As to his act in the first named capacity, without regard to any considerations of extraordinary powers added to that capacity from articles of copartnership, or the will, it is sufficient to say, without multiplying authorities, that it is the admitted doctrine that the dissolution of the partnership disables any one of the partners from contracting new debts, or buying, or selling, or pledging goods on account of the firm. Story on Part. 272. The loans and discounts procured by John M. Carpenter, in 1838 and 1839, were new contracts, and their liquidation by note and mortgage, in 1840, was also a new contract. The fact that the money thus procured was used in discharge of the debts of the partnership, does not change the nature of the contract by which that money was procured. It has been held that where one member of a firm executes a note after the dissolution of the partnership, it is a discharge of the partnership, and binds only the party executing the instrument. 2 Humph. 529 ; 6 lb. 85. It is true that the legal title to the debts and choses in action, belonging to a copartnership, rest in a surviving partner, and that he may appropriate the partnership property to the payment of the debts of the firm in any preferred manner which he may deem fit, and this without the assent of the personal representatives of the deceased partner; but this is always upon the existing contracts and debts of the partnership, and not upon new contracts made by himself. It should here be observed that there was no power contained in the copartnership articles vested in the survivor, and no provision in contemplation of that event.

The note made in 1840, and the mortgage, were made and executed in this form: “ H. Carpenter & Co., per John M. Carpenter, surviving partner.” In this shape, it was an attempt, by one member of a firm, to execute a note after the dissolution of the partnership. The effect would only be to bind the party making the note.

The death of Horace Carpenter put an end to the partnership from the time of the occurrence of that event, and also put an end to the power and authority of the surviving partners to carry on for the future, the partnership trade or business, or to engage in new transactions, contracts, or liabilities, on account thereof. Story on Part. 490. What was there in the will that changed this settled rule respecting partnerships'? The will, it is insisted, gave ample power to continue the business, and, in its own language, “ to mortgage and hypothecate portions of the estate, in order to inspire credit and procure facilities for the concern, and also to financier, raise money, and to do all other acts necessary in continuing and settling up the business.” But, upon whom were these powers bestowed?— for it will be remembered that the loans and discounts of 1838 and 1839, and the note and mortgage in liquidation of those loans and discounts, were procured, made and executed, by John M. Carpenter alone, and in his capacity of surviving partner. The will originally nominated and appointed three executors to exercise the powers granted thereby, but it also provided that those executors should “ exercise their powers jointly, or with a concurrence of a majority.” The codicil of the will, which reduced the number of executors from three to two made no alteration in the mode in which they should act, unless from necessity it did so in respect to the requisitions of a concurrence of a majority. The executors, by the terms of the will, must still act “jointly” in the exercise of their powers. It is very possible, that even under this restriction, the simple and obvious offices necessary to be performed in the settlement of the estate, and perhaps those of a similar grade in settling up the affairs of the partnership, such as paying and collecting debts due to the partnership, applying the partnership funds and effects to the discharge of its own debts, adjusting and settling the unliquidated debts due to the partnership, receiving any property belonging to the partnership, and making due acquittances, discharges, receipts and acknowledgments of such acts, might have been safely undertaken and fulfilled by either of the executors solely. But the will contemplated acts of greater discretion and importance, being nothing short of a continuance of the business upon the footing it had been conducted in the lifetime of the testator; during which, negotiations and speculations were to be allowed according to the joint ability and sagacity of the executors. In the discharge of the ordinary duties and powers of administrators, or executors, where several are nominated in a will, the act of one will be sufficient and binding on his co-executors ; but in the case of a will where special acts, out of the common course of duty of such officers are required, and those ‘ acts are confided to be performed jointly by several executors, if the act of one should be considered sufficient, it might present the extraordinary case of a minority of the executors overruling the majority in a matter dependent upon judgment and discretion. In these acts, the executor is rather engaged in the exercise of a power than in performance of the ordinary duties of an executor.

We give no opinion as to the effect of the mortgage upon the individual interest of John M. Carpenter.

The decree must be affirmed.  