Waterman v. Barratt

4 Del. 311

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

The Court:

Booth, Chief Justice.

—In transitory actions the creditor has a right to pursue his remedy, and collect his debt any where he can find his debtor. The first question is then, did Elijah Barratt execute these notes? and did George Waterman endorse and assign them over to the plaintiff? If this is proved, the plaintiff is entitled to recover the amount, unless the other grounds of defence will avail, which are, that the consideration for these notes is not proved, and that they were given by Elijah Barratt, whilst under duress of imprisonment.

The action here, is by an endorsee of the notes before maturity; and as between the endorsee and maker, the want of consideration cannot be set up as a defence, unless it be shown that he had notice of such want of consideration. (3 Harr. Rep. 387.)

But as between the original parties the defence could not avail, if it be shown that any consideration existed; and the release of the defendant from the previous arrest w-as a good consideration; for any benefit to the defendant, or detriment to the plaintiff, is a sufficient consideration. (1 Wh. Selw. 45.)

As to the defence of duress, to avail the party it must be shown to have been an illegal imprisonment, and not an arrest by virtue of legal process, unless improper force or unnecessary constraint be used. (1 Saund. Pl. & Ev. 444.)

Verdict for plaintiff, $317 02.