
    Emily Fowler Ford, plaintiff and appellant, vs. August Belmont, et al. defendants and respondents.
    1. In May, 1836, A. M. Bruen being seised and possessed of certain premises in the city of New York, he, together with M. Bruen,-executed an instrument, empowering one Clarke, within one month, to compromise certain claims of the United States government against certain other persons, and to sell certain premises, including those in question, for that purpose, and agreeing that he should have the residue of any money, &c. received on such sale beyond what was required to cany out such compromise. A compromise was effected by Clarke with the- governnient, whereby the latter agreed to accept $200,000 in full satisfaction for its claim. Previous to July, 1835, Clarke and R. Dyson and D. 8. Dyson agreed that the Dysons should raise the sum so to be paid to the United States government, and that in consideration thereof Clarke would allow them one third interest in sucl} agreement with A. M. Bruen; and the said Dysons raised that sum. On the 7.th of July, 1835, by the assent of Qlarke, A. M. Bruen, by his attorney, conveyed .the premises, in fee simple, to D. 8. Dyson. About the same time, the Dysons and Clarke executed an instrument under seal, declaring the terms upon which D. 8. Dyson held the same, which were, (1st.) To secure the payment to the government of such sum of $200,000. (2d.) A certain sum ($26,000). paid as a premium for raising the money, to be charged ,on the general fund to be .be raised out of the lots. * (3d.) Such sum of $200,000 was to be repaid, with interest, (áth.) The remainder of the money, or lots unsold, were to be divided or sold, in the proportion of two thirds to Clarke and one third-to the Dysons; such lots to be.sold,or disposed of as might thereafter be agreed on. In July, 1842, D(1S. Dyson presented a petition for his "discharge as a bankrupt, wherein he alleged that a schedule thereto annexed contained an accurate inventory of his property, &c. In such schedule was set down only one third residuary interest in the said premises, and a note appended stated that Clarke was “ entitled to the remaining two thirds interest arising from any excess after satisfying ” the mortgages thereon. In August, 1846, the official assignee in bankruptcy conveyed one third of the premises conveyed to D. S. Dyson, to one Ford, in fee, under whom the defendants claimed, by several mesne conveyances. And in October, 1860, the same official assignee conveyed to the plaintiff, for a nominal'sum, all of said premises so conveyed to D. S. Dyson by A. M. Bruen, pursuant to an order of the proper United States court. In an action for a partition of the premises embraced in the deed from A. M. Bruen to D. S. Dyson; Held 1. That the power of attorney and the agreement between Bruen and Clarke vested in the latter the entire equitable estate and ownership of the former in the premises, upon condition that the compromise should be effected; and that condition was complied with by the agreement to compromise and the subsequent payment of §200,000 by the Dysons under their agreement with Clarke. That by Clarke’s agreement with the Dysons, and Bruen’s deed to D. S. Dyson, and the payment of the $200,000, D. S. Dyson became vested with the entire legal estate; but only for the purpose of enabling Mm to repay tohimself and B. Dyson the §200,000 by them advanced (together with the bonus of $25,000 for raising the money) out of the proceeds of such lands as it should be necessary to use for that purpose, and, after that, for the further purpose of enabling Mm to divide, and by Ms deed, distribute, the remaining lands between himself and Clarke, or, to sell and convey the same. That the'entire estates and interests of Clarke and the Dysons, respectively, in the property, after the payment by the latter of the $200,000, stood thus : (1.) The two Dysons were, in equity, the owners of a charge upon the land for $225,000, which was the first lien thereon; and they were also the equitable owners of one third of all the land and of its proceeds, subject to that charge. (2.) Clarke was the equitable owner of two tMrds of all the land, or its proceeds, subject, in like manner, to such prior lien or . charge. (3.) The entire legal estate was vested in D. S. Dyson for the purpose of enabling him to satisfy that charge by a sale and conveyance of so much of the lands as should be necessary to accomplish that object, and of mating a distribution of the remaining lands or their proceeds, either by a conveyance to B. Dyson and Clarke of their shares, or by means of a sale and conveyance to others. That the entire estate of D. S. Dyson, both legal and equitable, including, and subject to, the charge, which also ran with the land, was vested in the assignee in bankruptby, as receiver, by the decree in bankruptcy and the assignment to Mm. That the lands could not be partitioned between the plaintiff and defendants without the consent of B. Dyson and the representatives of Clarke; for their interest extended to, and covered every lot and parcel thereof; and each parcel was also hound for the satisfaction of the charge of $225,000, as an entirety." That R. Dyson and the representatives of Clarke were, therefore, not only necessary parties, bat even if they were paities defendants, a decree in partition could not properly he granted, if opposed hy them.
    ' 2. The granting of leave to amend a complaint hy inserting the names of new parties defendants, after the action has been tried and submitted, is discretionary with the court.
    (Before Robertson, Ch. J., and Barbour and Garvin, JJ.)
    Heard January 25, 1868;
    decided December 31, 1868.
    This was an action to obtain a partition of certain real estate "between the plaintiff and the defendants, and was tried at the special term, where a judgment was rendered dismissing the complaint, with costs. After the cause was submitted, a motion was made hy the plaintiff to amend the complaint by inserting the names of the heirs of Matthew St. Clair Clarke, as defendants, which was • denied. The appeal is brought upon the judgment, and also from the order denying that motion.
    The facts, upon which the judgment was based, as found by Chief Justice Robertson, before whom the action was tried, are as follows:
    
      First. In the year 1833, Alexander M. Bruen was seised in fee simple and possessed of the premises in question, and other adjoining lands which were then and have since continued otherwise unoccupied.
    
      Seeond. In May, 1835, said A. M. Bruen, while so seised and possessed of said premises, and one Matthias Bruen executed a certain instrument under their seals, whereby they empowered one Matthew St. Clair Clarke within one month to compromise certain claims of the United States government against certain other persons, (George and Herman Bruen and John Bloodgood,) and to sell certain lands including the premises in question, to enable him to carry out such compromise, and whereby they also agreed that he should have the residue of any money, bonds, notes, or obligations received on such sale, beyond the sum necessary to carry out such compromise.
    
      Third. A compromise of the claims mentioned in such agreement was within the month therein specified effected by the said Clarke with the United States government, whereby the latter agreed to accept two hundred thousand dollars in full satisfaction for such claim.
    
      jFourth. In the year 183.5; before the month of July, the said Clarke and one Eobert Dyson, and one Dunbar S. Dyson, agreed that the two latter should raise the sum so to be paid to the United States government as such compromise, and that the said Clarke, in consideration thereof, would allow them one third interest in such agreement with said A. M. Bruen, and said Dysons raised said sum.
    
      Fifth. In-pursuance of such agreement between said Bruens and Clarke, and between the latter and said Dysons, on the 7th of July, 1835, by the assent of said Clarke, the said A. M. Bruen, by his attorney (Q-. W. Bruen,) duly constituted for the purpose, conveyed said premises mentioned in such agreements, including that in question, in fee simple to said Dunbar S. Dyson.
    
      Sixth. In July, 1835, about the time of the execution of the last mentioned deed, said Dysons and Clarke executed a certain'instrument under seal, whereby they declared the terms upon which said D. S. Dyson held the same, which were, (1st.) To secure the payment to the United States government of such sum of $200,000. (2d.) A certain sum ($25,000) paid as a premium for raising such sum to be charged on the general fund to be raised out of said lots. (3d.) Such sum of $200,000 was to be repaid, with proper interest. (4th.) The remainder of the money or lots unsold were to be divided or sold, as the case might be, in the proportion of two thirds to said Clarke and one third to said Dysons. And said Dysons and Clarke also agreed in said instrument that such lots were to be sold or disposed of as might thereafter be agreed on.
    
      Seventh. In July, 1842, said D. S. Dyson presented a petition to the District Court of the United States for the southern district of Hew York, duly verified by his oath, in order to obtain his discharge as a bankrupt; wherein he alleged that a certain schedule thereto annexed contained an accurate inventory of his property, rights and credits of every name and description, and the location and situation of each and every parcel and portion thereof.. In such schedule is set down only one third residuary interest in the premises conveyed by said A. M. Bruen to said Dyson, and reference is made to a note at the end of it. Such note stated that Matthew St. Clair Clarke, of Washington city, was entitled to the remaining two thirds interest arising from any excess after satisfying the amount of mortgages on such property which had been allowed said Clarke in account.
    
      Eighth. In August, 1846, the official assignee in bank-' ruptcy.for such southern district of Hew York conveyed one third of the premises conveyed to said D. S. Dyson, including those in question, to one Gordon L. Ford in fee simple, and by virtue of several mesne conveyances under said Ford, professing to convey the whole of said premises, the title of said Ford thereto was vested in the defendants, who are trustees.
    
      Ninth. In October, 1860, the same official assignee conveyed to the present plaintiff, for a nominal sum, all of said premises so conveyed to said D. 8. Dyson by said Bruen, pursuant to an order of the proper United States court.
    
      John Townshend, for the appellant, plaintiff.
    I. Where a claim of title rests upon documentary evidence, the quantity and quality of the claimant’s estate is a conclusion of law from the documentary evidence. As Dyson claimed under a documentary title, the nature of his estate was a conclusion of law. His admissions as to his title were of conclusions of law merely. An assertion of a conclusion of law cannot work an estoppel. The only cases where oral declarations as to the title can be material are those of titles resting in pais. (Brewster v. Striker, 2 Comst. 19. Warren v. Leland, 2 Barb. 613. Chautauque County Bank v. White, 2 Seld. 253. Adams on Ejectment, ’ 249, n. 3, ch. 10.) It was not competent for Dyson by any mere declaration of his to limit the amount of property which went to his assignee. Suppose he had said he had no property—would that have bound his assignee, or those claiming under him. (U. S. Bankrupt act, 1841. Porter v. Williams, 5 Seld. 142.)
    II. The declaration in the schedule of Dyson is not that St. Clair Clarke was entitled to two thirds of any residue after satisfaction of the charges upon the premises which had been allowed Clarke in account.'
    HL The' conveyance from Bruen to Dyson, and the deed between the Dysons and Clarke, although executed about the same time, and probably a link in the same transaction, are not between the same parties. They are not, therefore, to be construed as one instrument, but separately. (Craig v. Wells, 11 N. Y. Rep. 315.)
    IV. The conveyance by Bruen divested him of the entire fee. There was no reservation in. his favor, and under no circumstances could he reclaim any interest in the property conveyed, and it was obviously the intention to divést Bruen of all title. (Garfield v. Hatmaker, 15 N. Y. Rep. 475. Norton v. Stone, 8 Paige, 222.)
    V. The title vested in D. S. Dyson was not divested by the deed between the Dysons and Clarke. Because that deed, (a.) Contained no words of conveyance, (b.) Left Dyson entitled to the actual possession and the receipt of the rents and profits-, and therefore possessed of the real estate. (1 R. S. 727, § 47.) (c.) Was a mere personal
    covenant. (Walcott v. Ronalds, 2 Rob. 621.) (d.) Was not a mortgage, and did not charge the $200,000 on the land; That it was not a mortgage is shown by the fact that Clarke could not have redeemed. All he could do was to force a sale to see if any surplus was realized, (e.) If there was any trust, it was created by the deeds between Dyson and Clarke, and this, as creating a power in trust, left the legal estate in Dyson. (1 R. S. 735, § 105.)
    VI. Clarke was authorized to sell the lots to pay Bruen’s indebtedness to the United States, and to have the residue, if any, of the proceeds of such sale, over and above what was necessary to satisfy such indebtedness. Obviously, then, the arrangement with Clarke and Dysons was, if you Dysons will advance the $200,000 to pay the United States, I will procure Bruen to convey to you; but if you make any profit on the transaction, after deducting a bonus of $25,000 and interest on the $200,000, I, Clarke, am to have two thirds of such profits, and the lots were to be disposed of as thereafter should be agreed upon. D. S. Dyson was to hold the lots in the meantime. The only right of Clarke was to participate in the profits, if any.
    VII. It does not appear that the deed between Dysons and Clarke was ever recorded. It was not, therefore, a charge upon the land, as against creditors. Consequently it was not of any effect against the assignee in bankruptcy, who took the premises free of any trust or power created' by said deed; and Mrs. Ford, taking from him, was not affected by said deed. (1 R. S. 735, § 107.)
    VIII. It appears affirmatively that the defendants had title.only to one third part of the premises; that Dyson’s assignee had claimed title to the entire premises ; that he had conveyed to the plaintiff the residue of the interest not held by the defendants; this alone, in the absence of any other person claiming adverse to the plaintiff, was sufficient to entitle the plaintiff to a partition. The defendants cannot be damnified, for if they had any greater title than a title to one third they could have shown it— they did not. It is, therefore, no answer to say that there are other parties who can successfully contest the plaintiff’s title. (Craft v Merrill, 14 N. Y. Rep. 464.) Dunbar S. Dyson was the source of title to both parties. “ It was not for the defendant to say that the common ancestor had no title, and that his possession is not as tenant in common.” , (Jackson v. Streeter, 5 Cowen, 531.)
    IX. The plaintiff showed a proper case for a partition. (Beebe v. Griffing, 14 N. Y. Rep. 235-238.) The mesne conveyances between GK L. Ford and the defendants, were not adverse to the plaintiff. (Edwards v. Bishop, 4 Comst. 65.)
    . X. The court, at general term, will regard only the facts found. If they do not sustain the conclusions of law, the judgment will be reversed. (Hartman v. Proudfit, 6 Bosw. 191.)
    XI. The decision and opinion at special term are not to influence the decision of the court at general term, because the decision at special term was made on a state of facts different from that presented to the general term.
    XII. Conceding that the heirs of Matthew St. Clair Clarke had the right to call for an execution of the power, that was no reason for dismissing the complaint. A partition might have been decreed, subject to such right. (Supreme Court Rule, 79. Braker v. Devereaux, 8 Paige, 513. Woodworth v. Campbell, 5 id. 518. Canfield v. Ford, 28 Barb. 342.)
    XIII. If the heirs of Clarke were necessary to a complete determination of the controversy, the court should have ordered them to be brought in. The denying the motion, to bring in the heirs of Clarke, was erroneous. (Code, § 122. McMahon v. Allen, 12 How. 39. Powell v. Finch, 5 Duer, 666. Davis v. Mayor of New York, 2 id. 663. Shaver v. Brainard, 29 Barb. 25. Sturtevant v. Brewer, 9 Abb. 414. Van Epps v. Van Deusen, 4 Paige, 76.)
    1. The statute applies to partition. (Waring v. Waring, 3 Abb. 246.)
    2. The application to bring in necessary parties may be made at any time before judgment. (New York v. Mayor, 3 Duer, 121. Carswell v. Neville, 12 How. 445.)
    3. To deny the plaintiff’s application to bring in the heirs of Matthew St. Clair Clarke, is giving the defendants the same advantage as if they had set up their non-joinder by answer. The non-joinder, not having been set up, was waived, and could not be taken advantage of upon the trial. The defendants should not have the advantage of such non-joinder. (Code, § 145. Fosgate v. Herkimer Manufacturing Co., 2 Kern. 584. Zabriskie v. Smith, 3, Kern. 336. Wright v. Storrs, 6 Bosw. 600. Byxbie v. Wood, 24 N. Y. Rep. 607. Van Deusen v. Young, 29 Barb. 9. Abbe v. Clark, 31 id. 238.)
    XIV. The heirs of M. St. Clair Clarke were not necessary parties. (Tanner v. Niles, 1 Barb. 560. Van Arsdale v. Drake, 2 id. 599. Bogardus v. Parker, 7 How. 305. Vanderwerker v. Vanderwerker, 7 Barb. 221.)
    J. Larocque, for the respondents, defendants.
    - I. Xo thing more than the beneficial estate or interest of Dunbar S. Dyson, the bankrupt, in the premises in question, passed to the general assignee in bankruptcy, and no more could be conveyed by him. (Ontario Bank v. Mumford, 2 Barb. Ch. 596. Hosford v. Nichols, 1 Paige, 220. Van Epps v. Van Deusen, 4 id. 64. Storm v. Waddell, 2 Sandf. Ch. 494. 2 Story’s Eq. Jur. § 1038, and cases 
      
      cited. Andrew v. N. Y. Bible Society, 4 Sandf. 156 ; reversed, but on another ground, 4 559. Ward v. Davis, 3 Sandf. 502.
    II. The first deed from the assignee to Gordon L. Ford, under whom the defendants derive title, passed the whole of the beneficial estate and interest of the bankrupt, whatever that was. There was no intention to split up that estate and interest, and the general assignee in bankruptcy possessed no power to do so. On the contrary, to permit it would be productive of intolerable frauds and abuses. The subsequently attempted conveyance in this case, after an interval of twenty years, for a merely nominal consideration, producing nothing for the creditors, is a striking example of this. (1 R. S. 748, § 1, original Nos.; 5 U. S. Stat. at Large, § 3, p. 442; § 9, p. 447; § 10, p. 447; § 15, p. 448. Hathaway v. Power, 6 Hill, 453. Jackson v. Harter, 14 John. 226. Jackson v. McConnell, 19 Wend. 175. Jewett v. Jewett, 16 Barb. 150. Cleveland v. Boerum, 27 id. 252.)
    III. Although the learned chief justice did not retain, in the findings, the quotations of the language of the material parts of the deeds, as they were proposed to be inserted by the defendants’ counsel, and did not allow the amendment of the case by inserting the material parts of the evidence, as was proposed on their part, yet, as these are entirely matters of record, reference will be had, if ' necessary, on the argument, or in deciding the cause, to the exemplifications in possession of the defendants’ counsel ; and if, upon further consideration, it should be deemed t advisable for the protection of the defendants’ rights, on any appeal to the Court of Appeals, their insertion in the case will now be directed. (Ritchie v. Putnam, 13 Wend. 524.)
    W. For the purpose of the decision of this cause, if the preceding first point is well taken, it makes no difference whether Dunbar 8. Dyson is considered as having held an estate in trust in the premises, such as is authorized by the first or second subdivision of section 55 of the article of the Revised Statutes, entitled “ Of uses and trusts,” (1 R. S. 728,) under the deed of Alexander M. Bruen to him, and his own declaration of trust, executed upon the making of that conveyance, or whether the fee remained in Alexander M. Bruen, or vested in Matthew St. Clair Clarke, as supposed by the learned judge at special term.
    V. ISTor does it make any difference whether Dunbar S. Dyson had or had not an interest, as mortgagee, as would appear to have been supposed by the learned judge by his third finding. The passing of an interest, as mortgagee, from the bankrupt to the general assignee in bankruptcy, would not enable the latter to convey a legal esate, upon which alone, coupled with the possession, actual or constructive, an action for a partition can be maintained. (2 R. S. 312, § 57, original Nos. Id. 317, § 1. Striker v. Mott, 2 Paige, 387. Jenkins v. Van Schaack, 3 id. 242. Coxe v. Smith, 4 John. Ch. 271. Brownell v. Brownell, 19 Wend. 367. O’Dougherty v. Aldrich, 5 Denio, 385.)
    VI. ' The plaintiff, by bringing her action for a partition against the defendants, necessarily concedes such a possession in them as gives a good title against all the world, excepting only a party who shows a better one. This possession is, of course, of the whole land. The division into undivided thirds, where it exists, relates' to the title, and not to the possession. Even where there is a tenancy in common, the possession of each tenant in common, in judgment of law, extends to the whole land. She, there- s fore, concedes their possession, and they wholly deny her alleged tenancy in common with them; a denial which embraces both title and possession, as she has not otherwise alleged either, and she has also failed to prove either. (Same authorities.)
    
      YU. The order denying the plaintiff’s motion to bring in the heirs of Matthew St. Clair Clarke, as defendants, is not properly before the court for review, and, even if it were, should be affirmed.
    . 1. The case contains no copies of any papers on which it was made or opposed. It refers to the pleadings “ and proceedings” in this action. What those “proceedings” were, the court is not otherwise advised. (Lahens v. Fielden, 15 Abb. 177.)
    2. It was a most extraordinary motion, having been made after the trial and decision of the cause, and filing of the findings and conclusions, and proposing then to add parties who could not be concluded without an opportunity to answer, and without a trial; yet showing no ground for, and not asking for a new trial, or offering any excuse why, if supposed to be necessary or proper parties, they had not been joined before.
    3. The appeal from this order is taken after judgment entered in the cause, as though it were an “intermediate order involving the merits, and necessarily affecting the judgment,” neither of which it does.
    4. Even if all these objections were out of the way, the granting or denying of that motion would be mere matter of discretion, not reviewable on appeal.
    For the foregoing reasons, the judgment appealed from should be affirmed, with costs, and the appeal from the order dismissed, with costs.
   By the Court, Barbour, J.

As I understand this case, it stands thus:

First. The power of attorney, and the agreement between Bruen and Clarke) vested in the latter the entire equitable estate and ownership of the former in the premises, upon condition that the contemplated compromise should be affected; and that condition was complied with by the agreement to compromise, and the subsequent payment of §200,000 by the Dysons, under their agreement with Clarke.

Second. By Clarke’s agreement with the Dysons and Bruen’s deed to Dunbar S. Dyson, and the payment of the $200,000, D. S. Dyson became vésted with the entire legal estate; but, only, for the purpose of enabling him to repay to himself and Robert Dyson the §200,000 by them advanced, (together with §25,000 as a compensation for raising the money,) out of the proceeds of such lands as it should be necessary to use for that purpose, and, after that, for the further purpose of enabling him to divide and, by his deed, distribute, the remaining lands between himself, Robert Dyson and Clarke, or, to sell and convey the same.

Third. The entire estates and interests of Clarke and the Dysons, respectively, in the property, after the payment by the latter of the §200,000, stood thus :

1. The two Dysons were, in equity, the owners of a charge upon the land for §225,000, (being the §200,000 which they had paid out, and §25,000 for their services,) which was the first lien thereupon; and they were, also the equitable owners of one third of all the land and of its proceeds, subject to that charge.

2. Clarke was the equitable owner of two thirds of all the land, or its proceeds, subject, in like manner, to such prior lien or charge.

3. The entire legal estate was vested in D. S. Dyson for the purpose of enabling him to satisfy that charge by a sale and conveyance of so much of the lands as should be necessary to accomplish that object, and of making a distribution of the remaining lands or their proceeds, either by a conveyance to Robert Dyson and Clarke of their shares, or by means of a sale and conveyance to others.

Fourth. The entire estate of Dunbar S. Dyson, both legal and equitable, including and subject to the charge, which also ran with the land, was vested in Wardell, as receiver, by the decree in bankruptcy and the assignment to him.

If, then, the assignee had sold the entire estate and interest of Dunbar S. Dyson in the property, to one man, it would, manifestly, have been the duty of the purchaser, upon the demand of Clarke or Robert Dyson, to sell enough of the lands to pay off the charge, and, after satisfying the same, to divide the remaining lands, or sell them and divide the proceeds, in the proportions above mentioned, as should be agreed upon between Clarke, Robert Dyson and himself; and it is easy to see that the rights and duties of any number of separate or joint purchasers, collectively, as between themselves and Robert Dyson and Clarke, or their representatives, are precisely the same as would be those of the one purchaser in the case supposed. The relative rights of such parties, inter se se, to shares in the final distribution, must, of course, depend upon the extent of their respective purchases.

As the plaintiff and the defendants’ grantor purchased, the one a third, and the other the remaining two thirds of the estate and interest of Dyson, in severalty, such plaintiff and defendants have full power and authority, under and by virtue of the several conveyances through which they derive their title, to sell and convey sufficient of the lands to satisfy their charge upon the same, if they can agree to do so; and, in case either shall refuse, it is quite probable that the. other may, in a proper action, compel such sale and conveyance. So, too, the persons who are parties to this action, after the charge upon the lands shall be thus satisfied, may, by and with the consent of the representatives of Clarke and Robert Dyson, divide between themselves and such representatives the lands that shall then remain, in the proportion, in value, of two thirds to Clarke’s representatives, one sixth to Robert Dyson, one eighteenth to the plaintiff, (being the one third of the real interest of Dunbar S. Dyson in the premises which passed by the deed of the assignee in bankruptcy,) and one ninth to the defendants; (being the remaining interest of D. S. Dyson;) or, they may sell such remaining lands, and so divide the proceeds:

But the lands, as the matter is now situated, cannot be partitioned between the plaintiff and the defendants, without the consent of Robert Dyson and the representatives of Clarke. For, their interest extends to and covers every lot and parcel thereof; and each parcel is also bound for the satisfaction of'the charge of $225,000, as an entirely. ¡Not only, therefore, are Robert Dyson and Clarke’s representatives necessary parties to an action of this character, but, even if they were in as parties defendants, the decree in partition prayed for could not properly be granted if opposed by them.

For .these reasons, I am of opinion that the judgment should be affirmed, with costs.

The denial of the motion to insert new parties in the pleadings after the action had been tried and submitted, was not only discretionary with the court, but was so obviously right and proper, that it is unnecessary to spend ' a moment upon it. The order should also be affirmed  