Willard v. Andrews

The defendant’s answer was false. He does not now pretend that he did not give the note; nor does the answer set up the pretext that the suit was brought for the benefit of Wilson and Calk-ins, the payees and endorsers. The note having been transferred to the plaintiff before it was due, could not have been impeached by the defendant Andrews, on the ground of a want of consideration. It is quite clear that the defence was merely for delay and without the shadow *66of any legal excuse. It was therefore “ unfairly and unreasonably conducted,” within the meaning of the code, § 308, as it unjustly threw the plaintiff over a circuit. I shall therefore direct that an allowance of ten per cent, on the recovery be made to the plaintiff and be inserted in the record by the clerk.