Foster v. Townshend. interest the sequestration was ordered, and the receiver appointed. This action appears to have been without object, and certainly has been without fruit, to the plaintiff. He had no title in respect to which the appellants' mortgage was adverse, or upon which it was a claim affecting its value. When it shall be sought to enforce any judgment, or claim, against the corpus of the property and to compel the payment or such judgment or claim thereout, the validity of this mortgage held by the appellant may be questioned, or if the appellant shall seek by virtue of his mortgage to oust the plaintiff of his possession or obstruct him in the collection of the rents and profits, he will have his proper remedy, either by action or by summary proceedings in the original action. The sequestration was not, and could not be affected, nor the title of the plaintiff as receiver impaired, by any act or deed of the owner of the property, after the sequestration and the appointment of the receiver. The mortgage to Carey, the owner, given for a part of the purchase money, upon the conveyance to Whyte, was in the hands of the mortgagee, necessarily, subject to all the equities of the plaintiff in the original action, and the rights of the receiver therein, and he could make no better title to a purchaser or assignee, than he had. The appellant took, and now holds the mortgage, subject to all such equities, and any purchaser from him will take no better title than he has. This is the rule affecting all negotiable instruments and choses in action. If the plaintiff had an interest, which could be prejudiced by the existence of the mortgage, it would be unnecessary to restrain or forbid an assignment, for his rights would be the same against any assignee as against the appellant. So too, there was no occasion for an injunction against a foreclosure of the mortgage. Foster v. Townshend. A foreclosure without making the plaintiff a party will not affect him or his title, or possession, or right of possession, and if he is made a party, as can only be done by the leave of the court, he will be permitted to make out a defense that is open to him, and the same objections now taken to the mortgage can then be made. A mere conveyance of the legal title, either by sale or under a mortgage, and a foreclosure and sale, is not inconsistent with or necessarily adverse to the possession of the plaintiff, or his rights as receiver. The plaintiff did not make a case entitling him to the relief granted against the appellant, and upon the trial he asked no other or different relief, and has not appealed from the judgment given. Had the appellant asserted an adverse claim to the rents and profits of the real estate, which were the subjects of the sequestration, the complainant in the action would have had a remedy, by an order for an examination of the claimant, pro interesse suo, and such proceedings therein as would lead to an adjudication of the rights of the parties (1 Barb. Ch. Pr. 73, citing Bird v. Littlehales, 3 Swans. 299, 300, n. a; Hamlyn v. Ley, Seaton on Decrees, 413 [1220]; Johnes v. Claughton, Jac. 573; Hunt v. Priest, 2 Dick. 540). A formal action would not have been necessary in such case, and this action at the suit of the receiver cannot be maintained. The judgment must be reversed, and the complaint dismissed as to the appellant. All concur, MILLER, J., not voting. Moses v. McDivitt. MOSES v. McDIVITT. City Court of Brooklyn; General Term, April, 1876. ATTORNEY AND CLIENT.-COSTS.-USURY. Defendant in an action on contract might have pleaded usury, but elected not to do so, and suffered default, with an agreement that the judgment should be cancelled immediately, if he would give his bond and other securities for its amount, and no application was made in that action for relief from that judgment. Held, that he could not defend an action on the bond so given, on the ground of usury in the original contract. An attorney purchasing a thing in action with the intent of suing on it, though only on a certain contingency, violates the statute prohibiting attorneys, &c., from buying rights of action. 2 R. S. 288, § 71. No costs of appeal will be allowed where the parties have made no provision for any in a stipulation to abide by the decision of appellate court in a certain contingency, which did not happen. Appeal by plaintiff from a judgment and order. The action was brought by Raphael J. Moses, Jr., against John R. McDivitt. On May 3, 1872, one Washington Ritter loaned $2,500 to the defendant, John R. McDivitt, who gave his note for that amount with interest, payable in one year. At or about the same time he gave four additional notes, each for the sum of $31.25, as an extra payment of five per cent. over lawful interest for the loan. One of these small notes was paid, and the other three were exchanged for three others similar to the first, except that they were made payable to Henry T. Ritter instead of to Washington Ritter. In July, 1872, Washington Ritter loaned to the defendant the further sum of $1,500, also on usurious interest. The note taken for this loan was exchanged in January, 1873, for two notes of $767.50 each. In the Mones v. McDivitt. following May, Washington Ritter commenced a suit on all these notes, and on August 7, 1873, obtained a judgment by default, for $4,159.37, being principal, interest and costs of all said notes. On the same day this judgment was satisfied of record, and the defendant gave a bond and other security in satisfaction thereof. The defendant claimed that this judgment was ob tained by default, and the bond, &c., given in pursuance of the advice of Raphael J. Moses, Jr., the plaintiff, who at that time was his attorney and legal adviser, and whom he had retained to defend the action because of usury. The plaintiff afterwards bought the bond thus given, and brought this action thereon. The answer alleged that he purchased it with the intent and for the purpose of bringing a suit thereon, in violation of the statute; also set up the defense of usury. The cause was tried before Judge REYNOLDS and a jury, and under the charge of the court, a general verdict was rendered in favor of the defendant, based on the first defense. Judgment was not entered upon the second defense, but for the purpose of having it reviewed by the general term, the judge charged the jury in respect thereto, and, in addition to the general verdict, they found specially in favor of the defendant on all the issues. The parties stipulated that the defense of usury should first be decided, and that if such defense was determined in favor of the defendant, then he should have judgment absolute upon the merits against the plaintiff. Raphael J. Moses, Jr., in person (Edward Thorn), for appellant.-I. As to defense of usury, cited: Cuyler v. Santvoord, 13 Barb. 339, 344; De Wolf v. Johnson, 10 Moses v. McDivitt. Wheat. 391; Wright v. Wheeler, 1 Campb. 165, note; Barnes v. Hedley, 2 Taunt. 184; 1 Edm. Stat. at Large, 725, §§ 2, 3, 5, 6, 7; Freeman on Judgm. § 217; Thatcher v. Gammon, 12 Mass. 267, 270; Flint v. Sheldon, 13 Id. 443; Harning v. Castor, cited in Earl of Oxford's Case, near beginning of 1 Rep. in Chan.; Middleton v. Hill, 2 Cro. Eliz. 588; Bush v. Gower, 2 Strange, 1043; Cooke v. Jones, 1 Cowp. 728; Fisher . Banks, Cro. Eliz. 93; Rowe v. Bellafeys, Siderfin, 182; Bearce v. Barstow, 9 Mass. 48; Tyler on Usury, 399; Cromwell v. Delaplaine, 5 N. Y. Leg. Obs. 226; Tuthill v. Davis, 20 Johns. 287; Lansing v. Eddy, 1 Johns. Ch. 50; Jackson v. Dominick, 14 Johns. 442; Ord. on Usury, 93–103; Footman v. Stetson, 32 Me. 19; French v. Shotwell, 20 Johns. 667, affi'g S. C., 5 Johns. Ch. 565; Story's Eq. § 131; Gibbons v. Caunt, 4 Ves. 840. II. As to the statutory defense: Van Rensselaer v.. Sheriff, 1 Cor. 458; People v. Walbridge, 6 Id. 512; Baldwin v. Latson, 2 Barb. Ch. 306; Mann v. Fairchild, 3 Abb. Ct. App. Dec. 152; Warren v. Helmer, 8 How. Pr. 421; Ramsay v. Gould, 57 Barb. 408; Bristol v. Dann, 12 Wend. 144; Warner v. Paine, 3 Barb. Ch. 630; Brotherson v. Consalus, 26 How. Pr. 213;. Hill v. Gird, 7 Hill, 586, 590; Benj. on Sales, 236; Hammett v. Linneman, 48 N. Y. 399; Leger v. Bonnaffe, 2 Barb. 475. III. Where the primary or controlling intent is lawful, the secondary, conditional, contingent intent will not be regarded. Duffin's case, Rus. & Ry. C. C. Res. 367; Rex v. Boyce, 1 Moody C. C. 29; Rex v.. Cox, Rus. & Ry. C. C. Res. 362; Rex v. Phillips, 6 East, 473; 1 Chit. Crim. L. 233. Reed & Drake, for respondent.-I. As to defense of usury, cited: Tuthill v. Davis, 20 Johns. 287; Belding VOL. II.-4 |