Drummond v. Westervelt. from various sources about $500 of the firm's money, which he also appropriated to his own use. That the complainant has been compelled to discharge the liabilities of the firm, and that the whole amount of the clear value of the Rutherford Park property would be barely sufficient to make up to him his loss occasioned by the above. mentioned fraudulent conduct of his partner; and that on the 6th day of January, 1872, John Westervelt gave an order in the name of the firm, by which the house and lot in New York were conveyed directly to Higgins. The bill charges that the conveyance to William Westervelt was in fraud of complainant's right as a member of the firm; that it was brought about and procured to be done at the instigation and by the means of John Westervelt, and was done with the intent and purpose, on his part, of cheating and defrauding the complainant, and of putting the property of the firm in such a condition that the complainant could not control it, or obtain his share of it; and that for that purpose, John Westervelt conspired and colluded with William Westervelt, and by false statements and misrepresentations, and without authority, induced Higgins to convey the Rutherford Park property to the latter instead of to the firm, as by his agreement he was bound to do. William Westervelt has filed a general demurrer to the bill. The demurrer being general, can only be allowed in case the bill is defective for want of equity. It does not seem to me to be so. It presents a case in which the legitimate proof may be such as to call for a decree in favor of the complainant. In such case a general demurrer will not be allowed, Brooke v. Hewitt, 3 Ves. 255; Vail's Executors v. Central R. R. Co., 8 C. E. Green 466. The bill states substantially, that the defendants, John Westervelt and William Westervelt, conspired and colluded together with the intent and purpose of putting the property beyond complainant's reach, and of cheating and defrauding him out of his interest in it. This special charge of con Dorsheimer v. Rorback. spiracy and collusion, as against William Westervelt, is equivalent to the statement, that with full notice of the complainant's equity in the property, he fraudulently and with a view to cheating him out of it, and for that purpose, took title to it from Higgins. If he did, the complainant is entitled to the relief he seeks. "Collusion between two persons, to the prejudice and loss of a third, is," said Lord Hardwicke, in Garth v. Cotton, 1 Dick. 218, " in the eye of the court, the same as a fraud." The character of the transaction is such as to induce the suspicion, to say the least of it, of fraud on the part of the defendant, William Westervelt. The defendants were father and son. It is possible, but hardly probable, that the latter imposed upon the former; that the fraud was all on one side, and the father was wholly ignorant, not only of his son's designs in the transaction, but also of the complainant's interest in the property. The charge of conspiracy and collusion made in this connection, forbids the assumption that the father was a bona fide purchaser, or that he was a purchaser without notice of complainant's equity. As made in this bill, it imports bad faith and notice of complainant's rights. The demurrer is overruled, with costs. DORSHEIMER vs. RORBACK and others. 1. A final decree may be amended, even after enrollment, by the addition of a clause necessary to effect the remedy of the complainant under it, and which was inadvertently omitted in drawing it. 2. A material amendment, which is of course, will be made without a rehearing. On petition. Motion to amend final decree. Mr. Pitney and Mr. Coult, for the motion. Mr. T. N. McCarter, contra. Dorsheimer v. Rorback. THE CHANCELLOR. The bill was filed by the complainant (who was an idiot) by guardian, as one of the next of kin of John Rorback, deceased, late of Newton, in the county of Sussex, to recover a distributive share of his estate. (The share was $6701.30, and with interest amounted, at the date of the decree, to $13,335.60. The defence was, that the share had been paid by the administrators of John Rorback, deceased, to John Rorback, who claimed under an assignment from an alleged guardian of the complainant. The Chancellor decreed in favor of the complainant, both against John Rorback, who had received the money, and the representatives of Samuel Rorback and John H. Nelden, both of whom were dead, who were the administrators of John Rorback, deceased. The decree makes John Rorback primarily liable, and the representatives of the deceased administrators, secondarily liable. The decree has been enrolled. It has not been appealed from. Application is now made by petition, to amend the decree in respect to certain clerical errors, and by the insertion of the following clause: "It is further adjudged, decreed, and declared, that the said Samuel Rorback and John H. Nelden, in their lifetime, were liable to pay to said complainant the said sum of $6701.80, as and for her distributive share of the estate of said John Rorback, deceased, and that the payment of said sum of money, by said Samuel Rorback and John H. Nelden, to the defendant, John Rorback, as assignee of said complainant, as set forth by the defendants in their answer in this cause, was not a payment thereof to the complainant, and did not discharge the said Samuel Rorback and John H. Nelden in the premises;" inadvertently omitted in drawing the decree. The defendants' counsel resists this application, mainly, however, as to the proposed addition, which he insists is a material amendment of the decree that can only be made on a re-hearing. The proposed addition is a mere declaration of the dis Dorsheimer v. Rorback. allowance of the payment to John Rorback, and the liability of the administrators of John Rorback, deceased, in their lifetime, to the complainant, for the distributive share, on which liability the decree against the representatives of those administrators is founded. It is considered important, in obtaining the relief intended to be extended to the complainant by the decree, that it should contain the declaration in question. The power of amending the record of judgments has long been exercised by the courts of common law. They do not hesitate to amend the postea by the judge's notes, and to amend the record of the judgment, accordingly. In Doe v. Perkins, 3 T. R. 749, the court said: "The practice of amending by the judge's notes, which was of infinite utility to the suitors, was as ancient as the time of Charles the First, and the amendment might be made at any time." In that In that case, after a writ of error brought on a judgment of the King's Bench, in the Exchequer chamber, and after joinder in error there, Lord Loughborough, who tried the cause, amended the postea by his notes, and Mr. Justice Buller ordered the judgment roll to be amended by the amended postea. So, also, in Mellish v. Richardson, 7 B. & C. 819, such amendments were made in the Common Pleas, after writ of error brought and argued in the Court of Errors, and the Common Pleas amended their judgment by the amended postea, after the judgment had been reversed by the Court of King's Bench. The motion in this case, is to amend the decree so as to conform to the decision of the court, as evidenced by the Chancellor's opinion on file in this court. It seems obvious that the opinion, which is the very finding itself, with the reasons for it, and directions more or less particular as to the frame of the decree, is quite as safe a means of amendment as a judge's notes. It is urged that by the well settled practice of this court no material amendment will be made in an enrolled decree without a rehearing; that the amendments which the court will make in such cases without rehearing, are L Dorsheimer v. Rorback. confined to clerical errors and miscasting. The practice, however, does not appear so limited in this country, or even in England and Ireland. The court will not, indeed, vary an enrolled decree in a material point, on petition, without rehearing; but in a proper case it will not refuse to amend such a decree. Nor will the fact that the amendment is a material one, prevent the court from making it. The exercise of the power depends rather on the questions, whether the amendment is necessary or proper to express or effectuate the intention of the court in its decree, and whether the addition or omission asked for is one which the court would have made, of course, when the decree was signed. In Eyles v. Ward, 1 Dick. 58, liberty was given to amend the enrollment of a decree, though the amendment was said to be material. See, also, Yow v. Townsend, 1 Dick. 59. In Shine v. Gough, 2 Ball & Beatty 33, the application was to set off the costs in equity against the costs at law, the defendant having brought an ejectment, and the suit in equity having been instituted to quiet the plaintiff in his possession. The decree omitted to set off the costs. The Lord Chancellor, Manners, said: "The only difficulty I have in this case is, whether I must not rehear the cause, in order to set off this demand. As between the present parties, it was most clearly an omission in the decree, in not providing for the costs in the manner now sought, and such as would have been cured, upon motion, before the decree was enrolled." He adds : Strictly speaking, the relief should be given on a rehearing, and if it were a matter requiring to be debated, consideration from the court, and materially affecting the decree, it could not be decreed on motion. Having no difficulty in the case, I must grant the motion, and not put the plaintiff to the delay and expense of a rehearing." In Spearing v. Lynn, 2 Vern. 376, leave appears to have been given by the master of the rolls, afterwards confirmed by the lord keeper, to amend an order (which seems to have been enrolled) after an action brought against a surety for non-performance of it. So, too, in Lowten v. Corporation of |