This is a motion to 'set aside proceedings for irregularity—not on the merits, as no affidavit of merits is made.
What are the proceedings sought to be set aside ? They are: first, an order of this court made at the July special term, 1861,. on notice to the defendant and appellant, striking out the answer of the defendant herein as sham. Second, an order of this court made on notice to the defendant on the 29th of October, 1861. The defendant appeared in court and opposed the motion. These are the proceedings sought to be set aside for irregularity.
The grounds of irregularity are: first, that on the 26th of February, 1861, the defendant obtained an order to show cause at and for the then next special term of this court to make a motion, and an order from a justice of this court for a stay of proceedings. He never appeared to make his motion, and, of course, the order to stay died with the expiration of that special-term. It could not well be an irregularity then, to treat it thereafter, as both parties did, as if it were dead. Such action,—it is entirely well settled,—would waive its existence, if it were not dead.
The defendant served his answer on the 13th of March, 1861. Plaintiff gave notice of motion in July following to strike out defendant’s answer as sham; which defendant’s attorney alleges, with some singularity, that he did not oppose, because he supposed that that order staying proceedings, obtained for a special purpose in February preceding, was still alive. Tet, at the *215October special term following, when the case was in precisely the same attitude, he did appear and opposed a motion for change of receiver made by the plaintiff. This waived the order, of course, if it had any claim to be alive then.
I think it may be safely said then, that there is no pretence for the existence of that order to stay proceedings, and that that must be entirely laid aside as a ground of irregularity.
The second ground is: that on the 30th January, 1861, the plaintiff’s attorney stipulated with Harder’s attorney to strike out of the complaint all allegations of fraud, so far as they included the assignee Harder, the co-defendant of the appellant; and then he consented to a judgment against him, which was accordingly entered. The complaint in this case was to set aside the general assignment as fraudulent; and fraud in that assignment in the first complaint is charged against both defendants. The appellant says he did not know of the existence of that stipulation until June, 1861. The entry of the judgment is not pressed as a ground of irregularity. If it be any thing available to this defendant appealing, it is a defence to this action; in no sense an irregularity, but a fact to be pleaded. But it is not a defence. It is not material in any manner whether the assignee was or not guilty of fraud in the assignment, or whether he accepted it with a guilty knowledge. Assuming, however, that they are both guilty, a judgment against one is no bar to a judgment against the other. Assuming that the assignor, the appellant, is alone guilty, the same result follows.
Hor is the stipulation of the parties and the alteration of the complaint, any ground of irregularity. All the allegations of fraud impugning the assignee were struck out of the complaint. So far as the assignee was concerned, What had this defendant to do with that 1
The complaint unamended was served on him on the 21st of February, 1861, and - he served an answer to it on the 13th of March following. Defendant says he did not know of this stipulation until June, 1861. Suppose he did know it, What remedy had he ? What would he have done ? He had no remedy whatever. The truth was, he (the plaintiff) had made allegations of fraud against the assignee which were wholly unnecessary, and probably untrue, and he and the assignee *216finally agree that they are, and strike them out as to the assignee, and thus take judgment against him. This doubtless operates to sever the suit, but it proceeds as before against the appellant. As to him it is wholly immaterial whether these words are in or out of the complaint. As to him the statute makes it void. And if he intended to “ defeat, delay, or defraud” his creditors, if they were in, they would be utterly disregarded on the trial—no proof thereof could be required. It would be strange if these parties could not agree to waive the allegation of fraud as to the assignee, but must litigate for years an immaterial point. A bona-fide purchaser is an entirely different character—mere ignorance of assignor’s fraud, or being innocent himself, do not constitute a bonarfide purchaser. He must have paid value to be a bonarfide purchaser.
The answers then to this objection, are,
First. That the judgment severed the suit, and the case proceeds against the appellant as if his co-defendant had never been a party.
Second. That this defendant has nothing to do with the stipulation of these parties—neither in fact nor in law; so long as his rights are not affected thereby.
Third. The complaint as served is the original, unaltered complaint. There is no pretence that the stipulation has been violated thereby, even if this defendant had any right to refer to a stipulation he never made, to which he is no party, and which he cannot take advantage of. It has no analogy to a payment by a joint-debtor, or to the release under seal of a joint-debtor.
Fourth. If it were available to this defendant, it could be only as a defence, like a release or payment pending suit, and should be pleaded. It affords not the slightest basis for an allegation of irregularity.
‘ The last ground of irregularity is, that defendant was imprisoned, and so continued from 26th March, 1861, to this time; and that while imprisoned, the plaintiff could not proceed against his property. My brother, Miller, has cited many authorities touching this point. But do any of them pretend that such proceeding is an irregularity? Hot one. If any thing, this was a defence to the action, and in a proper case might be pleaded, as in other cases of payment, satisfaction, *217release, &c. So say the authorities, and ^ so in fact says my brother Hiller. (Wakeman a. Lyon, 9 Wend., 241.) But it can scarcely be called an irregularity to commence a suit when you have no cause of action, or one to which the defendant may have a good defence.
Imprisonment can be a defence, only so long as it continues. It appears that such defence did not exist at the commencement of this suit, that the imprisonment was illegal and unauthorized when it occurred, and the defendant has been discharged from his arrest, as appeal's by a copy of the order sent to the court since the argument, and by the report of the case in 14 Abbotts' Pr., 192.
It is clear, however, that the mere fact of an imprisonment after suit commenced, does not make irregular any further proceeding therein. If the defendant never pleaded it, like most other defences in such case, it will not aid defendant. Here there was no defence when the suit was commenced. There is none when it is sought to be interposed. The fact of the discharge from imprisonment is not legitimately before us, and it is only referred to, in answer to an unauthorized reference to merits. This motion is founded solely upon alleged irregularities. This court should have as little disposition, as in my judgment it has power, to set aside a judgment arbitrarily, against the settled practice of the court. If the defendant had merits, he should have sworn to them. If there had been irregularities dating along in February or January, 1861, the motion on any such ground should have been long before made, and no excuse in law whatever is made for the delay. The fact of imprisonment on the limits in New York (there is no allegation that the defendant was in close custody—the limits are the legal jail) is no excuse whatever for .the delay. Besides, the defendant expressly waived all irregularity by affirmative action in court, after all pretended irregularities had occurred. As to defendant’s personal knowledge of the proceedings in the cause, the law never presumes suoh knowledge. But it makes knowledge by the attorney, the client’s knowledge. Any other rule would be impracticable.
The proceedings being regular—in fact, being virtually so conceded by the decision of Judge Hiller, and there being no affidavit of merits, it follows as a consequence that the order *218should he affirmed. ° Here is a very large judgment, and the party is entitled to hold it, unless good cause is shown for setting it aside. None in my judgment is presented. In such case this court at general term has denied its power to set aside a judgment. This court has no more right than an individual to violate the law by disregarding its own settled practices.
Order reversed upon terms.