Dunham v. Dey , 1 Lock. Rev. Cas. 376 ( 1799 )

The Court of Errors reversed the Chancellor’s decision : holding that the notice contained in the schedule, that the “ title of the lots was in D. D. as collateral security to pay certain notes, was sufficient notice to the assignee of the existence of the prior mortgage to D. D. though the defeasance was not recorded: and that by having his conveyance first recorded, the assignee could not obtain a priority and defeat the deed given as a mortgage.

Iff The reporter adds the following note to the report of this case. “ The only point determined in the court below, declared to be erroneous by the decree of reversal was that, as to the sufficiency of the notice (by the schedule) to the respondent of the prior deed to the appellant, the defeasance to which was not recorded at the time of the assignment by the W.’s to Dey the respondent in trust.”

This is unquestionably correct, but the point of notice was the only one really made and determined in the court below.

As to the question of usury which was moved in the case, that defence came directly before the Supreme Court, in a suit upon one of the notes thus endorsed by Dunham, referred to in the above case. The judge at the circuit having left it to the jury to say whether the commission of two and one half per cent, for endorsing was or not taken with a usurious intent and of evading the statute, the jury found for the defendant Gould. The Supreme Court confirmed the verdict, and the Court of Errors affirmed the judgment of the Supreme Court. See Dunham v. Gould, 16 J. R. 367.

But in the case of Trotter and others v. Curtis, 19 J. R. 160, the Supreme Court held that where the plaintiff was in the habit of receiving produce for the defendant, a country merchant, and transporting it to New York, and accepting his drafts, with the engagement that the produce should be placed in their warehouse, before the drafts became payable : on which acceptances the plaintiffs charged a commission of two and one half per cent, on all advances made by them to meet the drafts, where the defendant had no funds in their hands and interest; the Supreme Court held that the commissions were not usurious, but a customary allowance for the trouble and inconvenience of transacting the business.