able Life Assurance Society of the United States. Decided November 11, 1879. An order overruling or sustaining a demurrer Grimball & Tunstall, for plff. N. Y. COURT OF APPEALS. Hatch et al., respts., v. The Central Nat. Bank, applt. Decided Nov. 11, 1879. After a judgment had been paid and satisfied, an order was made, on motion, opening it and granting leave to amend complaint and increase the amount claimed so as to conform to the summons by setting up a cause of action omitted by mistake. Held, No error; that the court had power to grant the motion; that such amendments may be allowed so as to prevent the operation of the Statute of Limitations, and that the order rested in the discretion of the court, and was not appealable to the Court of Appeals. This was an appeal from an order of General Term, modifying and affirming as modified an order of a Special Term opening a judgment entered August 5, 1876, and granting leave to amend the complaint and increase the amount claimed, so as to make it correspond to the summons, by setting up a cause of action omitted from the complaint by mistake. The judgment had been paid and satisfied when the motion was made. John E. Burrill, for applt. William Stanley, for respts. Held, That the Court had power to grant the motion, 73 N. Y., 187; 19 Johns., 244; 6 Blatch., 468; 13 Abb. Pr., 11; that the power of the Court over its own judgments is an inherent power, and not limited in matters of substance by section 174 of the Old Code or section 724 of the New Code, while section 723 of the New Code seems to authorize its exercise in furtherance of justice. Also held, That such amendments may be allowed so as to prevent the operation of the Statute of Limitations. Opinion by Speir, J.; Sedgwick and 17 Barb., 13; 23 N. Y., 357. Freedman, JJ., concurred. Also held, That as the order rested in the discretion of the Court, it was ment is demanded." The defendants not appealable. Appeal dismissed. Opinion by Danforth, J. All concur, except Folger and Andrews, JJ., absent. PLEADING. MARRIED WOMEN. N. Y. COURT OF APPEALS. appeared separately, and each separately demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Plaintiff claimed that the complaint was sufficient under section 162 of the Old Code, which provides. that "in an action or defence founded Broome, respt., v. Taylor et al. upon an instrument for the payment applts. Decided April 1, 1879. The complaint in an action upon a joint and several bond set out a copy of the bond, in which, as well as in the title of the cause, de fendants are described as husband and wife, and alleged that the whole amount thereof, with interest, was due to plaintiff, from defendants. On demurrer, Held, That as the bond was joint and several judgment could be given for one defendant and against the of money only, it shall be sufficient Held, That the bond in suit, being joint and several, a separate action could have been commenced against other; that the complaint was good as to the each obligor, and in an action against husband; that it showed a valid obligation both, judgment could be given for one against him, but that it was bad as against and against the other. Old Code, the wife; that as the complaint showed the $274; 11 N. Y., 294; 15 Barb., 525; bond to be the obligation of a married 16 id., 33; that the complaint was woman, and did not allege that it was given for any purpose that could make it binding good against the husband; that it upon her, the bond was prima facie a nullity showed a valid obligation against him, as to her, and the complaint failed to show and hence his demurrer was frivolous. a cause of action against her. To make a complaint good under § 162 of the This was an action upon a bond executed by the defendants, a copy of which is set out in the complaint. The bond is in the common form of a money bond conditioned to pay $10,000. In it the defendants are described as husband and wife; they are also similarly described in the title of the cause. After setting out the bond, the complaint states "that there is due to the plaintiff on said bond from the defendants the sum of $10,000, with interest, etc., for which judg-| Also held, That if the complaint had not shown that one of the defendants was a married woman, it would have been good against her, and in that case, in order to avail herself of the defence of coverture, it would have been necessary for her to set it up in her answer; 61 N. Y. 249; 53 id., 422; but as the complaint showed the bond to be the obligation of a married woman, and did not allege that it was given for any purpose that would make it binding upon her, as to her the bond is prima facie a nullity and the complaint failed to show a cause of action against her. 63 N. Y., 639; 71 id., 193. To make a complaint good under An application under 2 R. S., 619, § 44, to D. devised a life estate to K., remainder “to her compel payment of costs, is a special proceeding, and costs are allowable therein. An appeal lies to the Court of Appeals from an order of General Term, affirming an order of Special Term denying an application under 2 R. S., 619, § 44. This was an application under 2 Revised Statutes, 619, § 44, to obtain an order of the court, without action, requiring one George L. Marvin, as assignee of plaintiff, to pay the costs of an action wherein said George H. Marvin was plaintiff, and applicant is defendant, and was founded wholly on the statute, which declared his liability for such costs, and that it might be enforced by attachment. George L. Marvin was not a party, and was brought into court by a notice of the application. children and lawful heirs." The children of K. were in being when the life estate took effect by the decease of D. But they died unmarried and intestate during the life of their mother, who devised by her will all her interest to the property in question to plaintiff. Held, The children of K. took a vested remainder in the real estate devised by the will of D., and dying without issue, the real estate descended under the statute to their mother, who had the power devise it. Case agreed upon between the parties requiring a construction to be given to the will of Sarah Drake. Plaintiff claims title in this case to the undivided sixth part of certain property known as Nos. 92 and 94 Catherine street, New York City. The property was originally owned by Sarah Drake, who made a will, by which on her decease she devised the Held, That this application was a income of one-third of her estate to special proceeding, 11 N. Y. 477; her daughter, Mary Matilda Keese, and costs were allowable therein; that during her natural life. The will an order of the General Term, affirm- then declared that after her death, "I ing an order of Special Term denying give the remainder of such third to such application, was appealable to this her children and lawful heirs." court. 12 N. Y., 34. At the time of decease of the testa trix and when the life estate took the proceedings remitted to the Oyer and Terminer. On motion of the District Attorney, the latter part of the order was stricken out and the words the defendant discharged" inserted. On a writ of error sued out by the District Attorney, Held, That the proceedings could not be reviewed in this court on a writ of error sued out by the District Attorney; that at common law a writ of error lies only to review a final judgment, and not then in behalf of the people, and there is no statute authorizing a writ in behalf of the people in such a case. The defendant was indicted at a Court of Sessions held in Erie County, Held, That the children of the life tenant, who are the persons referred to by the phrase "to her children and lawful heirs," being in existence at the time the life estate took effect, for embezzlement. He pleaded not they took a vested remainder in the guilty, and the indictment was sent to property in question, 52 N. Y., 118, the Oyer and Terminer, where he was A case with exand such children dying unmarried tried and convicted. and intestate during the life of their ceptions was settled, and motion for mother, the estate, under the terms of a new trial thereon denied. A motion the statute, descended to their mother was also made to quash the indictment, as their heir at law. 3 R. S., 5th which was entertained by the Court, edition, 41, sec. 6; 41 N. Y., 66; 2 but denied. Sentence was suspended Denio, 9; 16 N. Y., 402. and there was no judgment in the The result is that Mary M. Keese Oyer and Terminer. A writ of cerupon the death of her children became tiorari was afterwards issued and althe absolute owner of the remainder lowed, and the proceedings removed in this estate, and lawfully entitled to into the Supreme Court. devise it as she did by will to the ing both parties, the General Term plaintiff in this case. ordered that "the conviction be reJudgment must accordingly be versed and the proceedings remitted awarded upon the case presented in to the Oyer and Terminer." favor of the plaintiff for the recovery of the undivided sixth part of the property in dispute, together with the costs of this proceeding. Opinion by Daniels, J.; Ingalls and Brady, JJ., concurring. WRIT OF ERROR. N. Y. COURT OF APPEALS. After hear At a subsequent General Term, upon motion of the District Attorney, the above order was modified by striking out the words, "proceedings remitted to the Oyer and Terminer," and inserting the words, "defendant discharged. This case was brought into this Court by a writ of error sued out by the District Attorney. James M. Humphrey and Robert C. The People, plffs. in error, v. Bork, Titus, for plff. in error. deft. in error. Decided October 7, 1879. On certiorari to review a conviction for em William H. Gurney, for deft. in error. Held, That at common law a writ bezzlement, the conviction was reversed and of error lies only to review a final against one property was The other de judgment, 26 N. Y., 154, and not stove store. The defendant R., who then in behalf of the people, 2 N. Y., was a Sheriff, answered separately 9; 14 id. 74; that there is no statute that he seized the property under a which allows a writ of error in behalf judgment and execution in favor of of the people in such a case, and there- the other defendants fore a review of the proceedings could H., and that said not be had in this court by a writ of the property of H. error sued out by the District Attor- fendants joined in a like answer. Plaintiff, to establish his title to the Bennett v. People, 49 N. Y., 137, property in question, put in evidence distinguished. ney. N. Y. COURT OF APPEALS. Raymond, assignee, &c., respt., v. Richmond, sheriff, et al., applts. Decided October 7, 1879. Plaintiff, as assignee for the benefit of the creditors of one J., brought action to recover for the conversion of certain personal property. Defendant R. answered that he seized the property as Sheriff, under a judgment and execution against one H., in favor of the other defendants. On the trial plaintiff put in evidence a judgment recovered in an action against H. and J., which showed that H. originally owned the property, but assigned it as collateral security to J.. who assigned it to plaintiff. Held, That said judgment established title in plaintiff good against all the defendants in the action in which it was rendered and all persons claiming under them subsequent to that judgment, but that it had no greater effect as to persons not parties thereto than any other evidence showing the same transfers would have had; and that defendants had a right to show that the transfer to J. was fraudulent in fact, or because there was no change of possession, the written transfer not having been filed as a mortgage. This action was brought by plaintiff as assignce for the benefit of the creditors of one J. for the conversion of the stock in trade of a a judgment recovered by him in an action against H. and J. That judgment showed that the title to the property was originally in H.; that it was transferred by her to J., as security for money loaned by him to her, and for liabilities incurred by him for her, and that he made an assignment thereof to plaintiff. J. C. Cochrane, for applts. Theodore Bacon, for respt. Held, That the judgment in the action against H. and J. established title to the property in plaintiff, good against all the defendants in that action and every person claiming under them subsequent to judgment therein, Bigelow on Estoppel (2d. ed.), 745; 17 Mass., 365; 2 N. Y., 269; 3 Barb., 171; 26 id., 569; that that judgment has no greater effect as to persons not parties thereto than any other evidence showing the same transfers would have had; it would not affect or conclude any one not a party thereto who acquired from H. any right or interest in the property prior to that action, or who could for any reason claim a better title than shehad. A creditor seeking simply to take her title by virtue of an execution against her subsequent to that judgment could take no more than she had then,but an execution creditor could assail the transfer to J. as fraudulent and void as to him; that the defendants here had a right to show in this action |