By the Court.—Miller, J.
I think the order made at special term involves the merits of' the action. It affects a substantial right of the party; and, if permitted to stand, may entirely deprive him of a complete defence to the action. It is clearly appealable. (Code, § 349; Cruger a. Douglas, 8 Barb., 81; Tracy a. N. Y. Steam Faucet Manufacturing Co., 1 E. D. Smith, 349.)
It is claimed that the arrest and detention of the defendant Tallmadge, was a satisfaction of the judgment pro tempore, and that no further steps could be taken to enforce the original debt for the time being. In Stilwell a. Van Epps (1 Paige, 615), which was a bill filed by a judgment-creditor to reach equitable assets, it was held, that while the plaintiff has the body of the defendant in execution on ca. sa., his right to proceed against the property of the latter is suspended. Chancellor Walworth says : “ The complainants having taken the body of their debtor into execution, could not proceed against his property at law, while he remained in custody.” In that case, leave was asked to file a supplemental bill, setting forth that the plaintiff had been discharged from custody under the Non-imprisonment Act; which was denied upon the ground that all the interest of the debtor had been transferred to the assignee. In Jackson a. Benedict (13 Johns., 553), it was decided that the lien of a judgment was suspended during the imprisonment of the judgment-debtor upon a ca. sa. In Cooper a. Bigelow (1 Cow., 56), it was held, that a ca. sa. executed is a satisfaction of the debt, except in certain cases provided for by statute. (See, also, Foster a. Jackson, Hobart, 52, 59; McGuinty a. Herrick, 5 Wend., 240; Wakeman a. Lyon, 9 Ib., 241; Hone a. Hone, Ambl. Ch., 79.) While it is unnecessary, finally, to determine that question upon this motion, yet I am inclined to think that the plaintiff had no right to proceed with the suit while the defendant was under arrest; and that, upon an application to the court for that purpose, the defendant would have been permitted, by supplemental answer, to set up the arrest as a bar to the action. Nor do I see any good reason why he should not now be allowed to avail himself of this defence, unless his neglect has precluded him.
I am also of the opinion that the amendments of the plaintiff's complaint, striking out all the allegations of fraud, as to [210]*210Harder, one of the defendants, so far changed the nature of the action, as to render the complaint invalid, as to him, and at least doubtful whether it was not equally invalid, as to the defendant Tallmadge.
By the stipulation, all the allegations charging the defendant Harder with fraud and fraudulent intentions were stricken out of the complaint. An amended complaint was served on Harder’s attorney, and a copy of the original complaint unamended was served upon the defendant; thus presenting the anomalous spectacle of a case with two different complaints, in regard to one of which, one of the defendants had neither notice or knowledge.
One of these allegations was, that the conveyance sought to be set aside was executed and delivered fraudulently and corruptly, for the purpose of hindering and defrauding the creditors of Tallmadge. It was also alleged that Harder knew at the time of the execution of the conveyance, that Tallmadge was indebted, embarrassed, and insolvent.
It also contained other allegations of fraud against Harder, which constituted the basis and foundation of the action. Stripped of these charges, it is exceedingly questionable whether the gist of the action was not destroyed, and the complaint so far emasculated and deprived of force and validity, as to present no case upon which the judgment of a court could properly be rendered and made effective ; in fact, whether with the allegations of fraud stricken out, the complaint on its face did not show that Harder was a bona-fide purchaser for value, protected by the statute against existing creditors. (2 Rev. Stat., 134; Anderson a. roberts, 18 Johns., 515.) I do not, however, consider the precise effect of this proceeding as entirely controlling and decisive. It is sufficient in my opinion that it might possibly change the whole character of the case, and seriously affect the rights of the party. I think the defendant was entitled, under any circumstances, to be heard upon that question; and the change in the form of the action was so substantial, so vital, and important, that he should have been served with a copy of the amended complaint; or at least have immediate notice of this new and private arrangement, and a fall opportunity to present his objections, as he may have been advised was material.
[211]*211In this respect, and independent of the question as to the effect of the stipulation in striking out the allegations of fraud in the complaint, the proceedings and the judgment, if nothing more, were clearly irregular. No such practice is recognized as allowing a plaintiff on his own motion, and without the knowledge or consent of one of the defendants in the suit, to strike out a portion of the complaint, and thus proceed to a judgment. An action cannot thus be severed and split up into two, proceeding at the same time with each other, without an application to the court for that purpose, or upon notice to the party who has a right to be heard. The record of the judgment in such a case would present two complaints, only one of which had been served on all the defendants. Upon the facts presented, these proceedings cannot be upheld.
In the case of Thomas a. Allen (2 Wend., 618), it was expressly held, that a declaration amended in consequence of a demurrer interposed by one of the defendants, was an amendment as to the other. The amendment of the complaint in the case at bar was not in conformity with the provisions of the Code and the practice, being entirely without notice to the defendant Tallmadge, and in violation of his rights. (Code, §§ 172, 173; Thomas a. Allen, 2 Wend., 618; Akin a. Albany Northern R. R. Co., 14 How. Pr., 337; Ward a. Dewey, 12 Ib., 193; 1 Hovenden on Frauds, 118; Ritchie a. Alwyn, 15 Ves. Jr., 82.)
The motion to set aside the proceedings in this case are not founded upon irregularity alone. Although the defendant claims that the proceedings were irregular (and I think I have shown that they were so in some respects), he at the same time asks permission to put in an answer. The motion is based, in part, upon facts showing that he has from circumstances been deprived of an opportunity to present his defence, and to a considerable extent prevented from doing so by his imprisonment upon an execution issued by the plaintiff upon the judgment upon which this action is based. I do not understand that the defendant claims that his imprisonment was an irregularity in the proceedings in this case, and that they should be set aside on account of this alleged irregularity. He does, however, insist, that it was a defence to the action, and that by reason of this very imprisonment he has had no opportunity to present [212]*212his defence. He also urges it as a circumstance addressed to the discretion of the court upon the question of laches in allowing the default to be set aside, and in giving him a chance to be heard.
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By the Court.—Miller, J.
I think the order made at special term involves the merits of' the action. It affects a substantial right of the party; and, if permitted to stand, may entirely deprive him of a complete defence to the action. It is clearly appealable. (Code, § 349; Cruger a. Douglas, 8 Barb., 81; Tracy a. N. Y. Steam Faucet Manufacturing Co., 1 E. D. Smith, 349.)
It is claimed that the arrest and detention of the defendant Tallmadge, was a satisfaction of the judgment pro tempore, and that no further steps could be taken to enforce the original debt for the time being. In Stilwell a. Van Epps (1 Paige, 615), which was a bill filed by a judgment-creditor to reach equitable assets, it was held, that while the plaintiff has the body of the defendant in execution on ca. sa., his right to proceed against the property of the latter is suspended. Chancellor Walworth says : “ The complainants having taken the body of their debtor into execution, could not proceed against his property at law, while he remained in custody.” In that case, leave was asked to file a supplemental bill, setting forth that the plaintiff had been discharged from custody under the Non-imprisonment Act; which was denied upon the ground that all the interest of the debtor had been transferred to the assignee. In Jackson a. Benedict (13 Johns., 553), it was decided that the lien of a judgment was suspended during the imprisonment of the judgment-debtor upon a ca. sa. In Cooper a. Bigelow (1 Cow., 56), it was held, that a ca. sa. executed is a satisfaction of the debt, except in certain cases provided for by statute. (See, also, Foster a. Jackson, Hobart, 52, 59; McGuinty a. Herrick, 5 Wend., 240; Wakeman a. Lyon, 9 Ib., 241; Hone a. Hone, Ambl. Ch., 79.) While it is unnecessary, finally, to determine that question upon this motion, yet I am inclined to think that the plaintiff had no right to proceed with the suit while the defendant was under arrest; and that, upon an application to the court for that purpose, the defendant would have been permitted, by supplemental answer, to set up the arrest as a bar to the action. Nor do I see any good reason why he should not now be allowed to avail himself of this defence, unless his neglect has precluded him.
I am also of the opinion that the amendments of the plaintiff's complaint, striking out all the allegations of fraud, as to [210]*210Harder, one of the defendants, so far changed the nature of the action, as to render the complaint invalid, as to him, and at least doubtful whether it was not equally invalid, as to the defendant Tallmadge.
By the stipulation, all the allegations charging the defendant Harder with fraud and fraudulent intentions were stricken out of the complaint. An amended complaint was served on Harder’s attorney, and a copy of the original complaint unamended was served upon the defendant; thus presenting the anomalous spectacle of a case with two different complaints, in regard to one of which, one of the defendants had neither notice or knowledge.
One of these allegations was, that the conveyance sought to be set aside was executed and delivered fraudulently and corruptly, for the purpose of hindering and defrauding the creditors of Tallmadge. It was also alleged that Harder knew at the time of the execution of the conveyance, that Tallmadge was indebted, embarrassed, and insolvent.
It also contained other allegations of fraud against Harder, which constituted the basis and foundation of the action. Stripped of these charges, it is exceedingly questionable whether the gist of the action was not destroyed, and the complaint so far emasculated and deprived of force and validity, as to present no case upon which the judgment of a court could properly be rendered and made effective ; in fact, whether with the allegations of fraud stricken out, the complaint on its face did not show that Harder was a bona-fide purchaser for value, protected by the statute against existing creditors. (2 Rev. Stat., 134; Anderson a. roberts, 18 Johns., 515.) I do not, however, consider the precise effect of this proceeding as entirely controlling and decisive. It is sufficient in my opinion that it might possibly change the whole character of the case, and seriously affect the rights of the party. I think the defendant was entitled, under any circumstances, to be heard upon that question; and the change in the form of the action was so substantial, so vital, and important, that he should have been served with a copy of the amended complaint; or at least have immediate notice of this new and private arrangement, and a fall opportunity to present his objections, as he may have been advised was material.
[211]*211In this respect, and independent of the question as to the effect of the stipulation in striking out the allegations of fraud in the complaint, the proceedings and the judgment, if nothing more, were clearly irregular. No such practice is recognized as allowing a plaintiff on his own motion, and without the knowledge or consent of one of the defendants in the suit, to strike out a portion of the complaint, and thus proceed to a judgment. An action cannot thus be severed and split up into two, proceeding at the same time with each other, without an application to the court for that purpose, or upon notice to the party who has a right to be heard. The record of the judgment in such a case would present two complaints, only one of which had been served on all the defendants. Upon the facts presented, these proceedings cannot be upheld.
In the case of Thomas a. Allen (2 Wend., 618), it was expressly held, that a declaration amended in consequence of a demurrer interposed by one of the defendants, was an amendment as to the other. The amendment of the complaint in the case at bar was not in conformity with the provisions of the Code and the practice, being entirely without notice to the defendant Tallmadge, and in violation of his rights. (Code, §§ 172, 173; Thomas a. Allen, 2 Wend., 618; Akin a. Albany Northern R. R. Co., 14 How. Pr., 337; Ward a. Dewey, 12 Ib., 193; 1 Hovenden on Frauds, 118; Ritchie a. Alwyn, 15 Ves. Jr., 82.)
The motion to set aside the proceedings in this case are not founded upon irregularity alone. Although the defendant claims that the proceedings were irregular (and I think I have shown that they were so in some respects), he at the same time asks permission to put in an answer. The motion is based, in part, upon facts showing that he has from circumstances been deprived of an opportunity to present his defence, and to a considerable extent prevented from doing so by his imprisonment upon an execution issued by the plaintiff upon the judgment upon which this action is based. I do not understand that the defendant claims that his imprisonment was an irregularity in the proceedings in this case, and that they should be set aside on account of this alleged irregularity. He does, however, insist, that it was a defence to the action, and that by reason of this very imprisonment he has had no opportunity to present [212]*212his defence. He also urges it as a circumstance addressed to the discretion of the court upon the question of laches in allowing the default to be set aside, and in giving him a chance to be heard.
The objection was taken upon the argument that the defendant had not served an affidavit of merits with his motion-papers,, and that for that reason he could not ask the court to set aside the proceedings upon the merits. The defendant swears to' merits in reference to the original action, in which an appeal has been taken from the judgment, and is still pending. His counsel who appears to have labored under a misapprehension in this respect, asked permission to file and serve an affidavit of merits in the case, and thus supply the deficiency. There are-facts disclosed in the papers, which in my opinion, establish that the defendant may have a good defence to the action. It is certainly apparent that the act of the plaintiff has to some extent interfered with, and restrained the defendant since this action was commenced; and it appears to me that this objection should not be regarded as an insuperable obstacle, if it can be supplied without violating any settled legal principle.
To obviate this technical difficulty (and it is purely such), it may be made a condition of opening the default, and allowing the defendant to answer, that he file and serve an affidavit of merits. It would be enforcing a strict and rigid rule to hold that there is no relief whatever in any such case, and that this court has not the legal right to interfere on account of an objection of this character. While in the exercise of its high functions, it should not disregard its settled and established practice, neither should it permit a mere technicality, which can he easily remedied in accordance with its practice, to suffer injustice to be done, and to prevent the exercise of a sound discretion in setting aside a default for good cause.
While the fact that the judgment is large, should induce the exercise of a proper degree of caution in disturbing plaintiff’s proceedings, it also furnishes an additional and a very strong reason why a party should not be deprived of his defence. We violate no rule of law by permitting an aggrieved party to he heard; on the contrary, we promote justice by so doing. The plaintiff will be abundantly protected by allowing the judgment [213]*213-to stand as security, and if he finally succeeds, loses nothing. It only remains to be considered whether the appellant is so far chargeable with laches in not applying for relief at an earlier stage in the proceedings, as to prevent any interference on his behalf.
He was imprisoned during most of the time while the proceedings were in progress; and hence, doubtless, to a considerable extent deprived of a full opportunity to assert and protect his rights. Conceding that the questions presented may have the appearance of a legal defence, his imprisonment is a very strong, if not a sufficient reason for his apparent neglect, and should have great weight upon the question of laches, when the act« of the plaintiff has, to some extent, been the cause of it. Since the argument of this appeal, we are informed that the execution issued by the plaintiff upon the judgment has been set aside. What effect the discharge of the defendant might have under the principle laid down in the cases cited, as to the right of the plaintiff to proceed with the suit, while the defendant was imprisoned; or whether if the imprisonment was a defence at the time, a subsequent discharge after a long confinement would discharge a suit already pending, are questions of too grave a character to be determined without argument. If that new aspect of the case could be considered, after an argument and submission at the general term, it does not, in my opinion^ lessen the claim of the defendant to the favorable consideration -of the court, upon the question of his neglect, that he has thus been illegally arrested and detained. In addition, the appellant swears that the amended complaint was not served on him, and he had no notice of the arrangement by the plaintiff with Harder, that he was to abandon the defence of the suit, and to allow ' a decree to be taken, until a very short time before making the motion. He did not know the nature of the answer put in for him; nor that a motion had been made to strike it out as sham ; nor that it had been stricken out by default, and a decree obtained, until quite recently. It also appears that the ■appellant’s attorney, by an error of judgment, as to the effect of the order to stay plaintiff’s proceedings, which might very easily occur (when the authorities upon the question, as in that case, were conflicting), and regarding the motion as irregular, .did not appear and oppose the motion for judgment. Under [214]*214these circumstances, I think the appellant shows a sufficientexcuse for his laches, and should be permitted to answer the amended complaint. The order of the special term, denying-the. motion, should therefore be reversed. The appellant must pay costs of opposing motion, and of entering up the judgment, and serve an answer with an affidavit of merits within twenty days after adjustment, neither party to have costs of appeal; and the judgment to stand as security until the final disposition of the case, with leave to apply to the special term for instructions-as to receiver, if necessary, in the mean time.
Hogeboom, J., concurred.