Fassett a. Tallmadge.

finally 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 dif ferent character-mere ignorance of assignor's fraud, or being innocent himself, do not constitute a bona-fide purchaser. He must have paid value to be a bona-fide 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? Not 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,

Fassett a. Tallmadge.

release, &c. So say the authorities, and so in fact says my brother Miller. (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 appears 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 judg ment 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 such 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 Miller, and there being no affidavit of merits, it follows as a consequence that the order

Butchers and Drovers' Bank a. Jacobson.

should be 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.

BUTCHERS AND DROVERS' BANK a. JACOBSON. New York Superior Court; General Term, April, 1862. PLEADING.-COMPLAINT ON PROMISSORY NOTE.-SECTION 162 OF THE CODE.

A complaint which sets forth a copy of a promissory note, and alleges that there is due to the plaintiffs thereon from the defendants a certain sum, for which judgment is demanded, is sufficient under section 162 of the Code. It is not necessary to allege that the defendants made the note, nor to show how they are connected with it.

So held, where the note sued upon was signed by a firm.*

Appeal from a judgment on demurrer.

The complaint in this action was in the following form: "New York Superior Court.-The Butchers and Drovers' Bank of Providence, plaintiffs, against Frederick Jacobson, Jonas G. Dudley, and Joseph W. Corlies, survivors of the firm of Joseph W. Corlies & Co., defendants.

"The plaintiffs above-named by this complaint state, that there is due to the plaintiffs from the defendants the sum of two thousand four hundred dollars, with interest thereon from Sep

*This decision overrules Price a. McClave, 6 Duer, 544; 5 lb., 670; and probably Alder a. Bloomingdale, 1 lb., 601; Lord a. Chesebrough, 4 Sandf., 696; Marshall a. Rockwood, 12 How. Pr., 452; and Bank of Geneva a. Gulick, 8 lb., 51.

Butchers and Drovers' Bank a. Jacobson.

tember 21, 1861, on a written instrument, of which the following is a copy, to wit:

"$3,000.

NEW YORK, 9th March, 1860.

"Six months after date we promise to pay to the order of the drawers three thousand dollars at St. Nicholas Bank, value received.

"(Signed)

'JOSEPH W. CORLIES & Co.'

"(Indorsed)

Joseph W. Corlies & Co.'

"That the plaintiffs have duly performed all the conditions in said contract on their part, and claim the said sum and interest.

"All the matters above-stated are stated upon information and belief.

"Wherefore, the plaintiffs demand judgment against the defendants for the said sum of two thousand four hundred dollars, with interest as aforesaid, besides the costs."

The defendants demurred to this complaint, on the ground that it did not state a cause of action. Judgment was rendered for the plaintiffs at the special term, and the defendants appealed.

Wm. B. Leeds, for the appellants, argued that the complaint must state additional facts to connect the defendants with the note, and cited Price a. McClave (6 Duer, 544; 5 Ib., 670); Alder a. Bloomingdale (1 Zb., 601); and Marshall a. Rockwood (12 How. Pr., 452).

C. Bainbridge Smith, for the respondents, cited Prindle a. Caruthers (15 N. Y., 425); Keteltas a Myers (19 Ib., 231); and Code, § 162.

BY THE COURT.*-MONELL, J.-I cannot distinguish this case in principle from Prindle a. Caruthers (15 N. Y., 425), which has since been followed in this court in Price a. McClave, decided by the general term in December, 1860.

* Present, BoswORTH, Ch. J., MONELL and BARbour, JJ.

Butchers and Drovers' Bank a. Jacobson.

In Prindle a. Caruthers, the complaint contained little, if any thing, more than is contained in the complaint in this case. It did, however, allege that the defendant made the contract: there is no such allegation in this complaint. But, looking at the section of the Code under which this complaint was drawn, in a spirit of liberal construction, with the light shed upon it by the court in Prindle a. Caruthers, I cannot believe the Legislature intended to give to it any other effect than its plain unequivocal language imports. There is no doubt the Legislature can prescribe the forms of pleading, and they can dispense with the form altogether. They can declare what shall be sufficient, and when they have declared that "it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims," it leaves no room for doubt that they intended to allow this seemingly informal and incomplete mode of pleading. In enacting the Code, it was designed to, as it does in terms, abolish all the forms of pleadings as theretofore existing, and to allow such only as are therein prescribed. (Code, § 140.) In following those forms, the pleader is protected by an authority higher than the court; and in my judgment, it is better to partake of the spirit of reform which the Code professes to have worked in the system of pleading, than by cavilling to interrupt its harmonious action. I cannot entertain a doubt that the complaint in this action was perfectly intelligible to the defendants, and that without the aid of lawyers they fully understood what they were sued for. Indeed, it was more apparent to their comprehension than if its meaning had been covered up and concealed under the useless verbiage of the old forms.

The complaint, we think, contains a sufficient statement of the cause of action, and it being upon an instrument for the payment of money only, was strictly within section 162 of the Code, and both upon reason and authority must be sustained. The order appealed from must be affirmed, with costs.