#### Griffith *et al. versus*Sitgreaves.

1. The act of April 18th, 1874 (writ of error to refusal of judgment for want of sufficient affidavit of defence), was intended to reach only clear cases of error in law, so as to prevent the delay of a trial.

2. Writs of error foNrefusal of judgment for want of sufficient affidavit of deare not to be encouraged.

3_ jn doubtful cases, especially those requiring a broad inquiry into the facts, the Court refuses judgment, the matter should go to the jury under ProPer instructions from the Court.

4. This case was one thus to go to the jury."

March 23d, 1876.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and "Woodward, JJ.

Error to the Court of Common Pleas of *Northampton*County, of July Term, 1876, No. 167.

This was an action of assumpsit, brought November 25th, 1874, by Matthew PI. Griffith and others, trading as Griffith, Eoberts & Butler, against Theodore E. Sitgreaves.

The claim of the plaintiffs, was on seven promissory notes, all dated New York, January 9th, 1874, drawn by Eobert C. Pyle to the order of T. E. Sitgreaves, payable at the First National Bank, Easton, and indorsed by Sitgreaves. The notes were for different amounts, but aggregated $2703.68 ; the first was to run four months, the time for the others each increasing one month, the last being payable ten months after date.

The defendant filed an affidavit of defence, averring that the notes mentioned in the claim were procured to be made to the drawer, Pyle, by force, fraud, and duress of imprisonment, practiced upon him by the plaintiff under the following circumstances:'

Pyle had, during the months of May and June, 1873, bought from the plaintiffs ready-made clothing and materials for clothes to the amount of $3774.08 on a credit of six months, for which Pyle alone was liable. In consequence of the panic in September, 1873, Pyle could not pay this bill at maturity, and was in correspondence with the plain*379tiff for an extension, and was induced to believe from the representations of the plaintiff that such extension would be granted; in this condition of things, Griffith, one of the plaintiffs, sent a telegram to Pyle a few days before the date of the notes, saying he would meet him at the Metropolitan Hotel, New York, on that day, from which the said Pyle was induced to believe that he was to meet Griffith in reference to the extension. Pyle then went to New York on the 9th of January, 1874, and met Griffith at the Metropolitan Hotel. After some conversation about the extension Griffith insisted that Pyle should give his notes, indorsed by some responsible person, for the whole amount of the bill, payable at different dates, amounting with interest to $3896.60. Pyle then said he did not know whether he could get such indorser, but would try to do so, and would immediately go to Easton for the purpose, and endeavor to get Sitgreaves, the defendant, to indorse the notes, and thereupon arose to go home, when Griffith told him he was not at liberty to go home or leave New York, because there was an officer in the room who would arrest him, take him to Utica and imprison him if he attempted to leave the city, whereupon Pyle discovered that there was another person, nam'ed Wheeler, in the room, who claimed to be an officer in the sheriff’s office at Utica, and said he was ordered to arrest Pyle if he attempted to leave the hotel. Griffith and the officer held the person of Pyle in constant and close custody, not leaving him at liberty for any purpose from Friday the 9th of January until Sunday the 11th, and “ by means of the force, fraud, and duress exercised and exerted upon the said Pyle, unlawfully, fraudulently, and wickedly compelled and coerced the said Pyle to write a letter ” to the defendant to ask him to indorse notes then drawn and signed by Paul under the influence of the same force, etc., for the payment of $3896.60, seven of which are the notes sued on. The letter and notes were sent to the defendant by mail, and Pyle was detained in custody by Griffith and the officer until the next Sunday, when the notes were indorsed by the defendant and sent back to New York by mail to Pyle and by him delivered to Griffith on the same Sunday. The defendant was ignorant of the circumstances of force, fraud, and duress in which the notes were procured from Pyle at the time he indorsed them, Griffith having insisted on seeing the letter to the defendant, thus preventing Pyle from informing the defendant of the facts and circumstances under which the notes were given. Griffith received the notes on Sunday, January 11th, .1874, when they were delivered to them. The defendant therefore avers that the *380notes were absolutely fraudulent and void by reason of the fraud, force, and duress, and also by reason of tbeir delivery on Sunday, and the indorsement of the defendant was also fraudulently procured and void for the same reasons. When Pyle delivered the notes he told Griffith they had been signed by him, and then delivered under the influence of force, fraud, and duress, and that they were void and illegal, and he did then and thereafter should repudiate the notes and all obligations ensuing therefrom.

The'plaintiff took a rule for judgment for want of a sufficient affidavit of defence.

The Court of Common Pleas discharged the rule.

Meyers, P. J., after an exhaustive discussion of the authorities, saying:

“. . . And though Wheeler had the lawful authority to arrest Pyle, yet if he abused that power at the instance of the plaintiffs and for the purpose of pi’ivate gain; or if Wheeler had no such authority, but the plaintiffs nevertheless induced Pyle to believe it and threatened to arrest and imprison him, are all questions of fact, coupled with the fact whether or not Pyle was under duress of imprisonment by reason thereof, and while so, executed and delivered the notes in question. They are not only questions of fact, but are in the line of defendant’s affidavit of defence.”

He also said that he was of opinion that the defendant as indorser could not avail himself of the duress of the maker.

On the question whether the defendant was liable by reason of the notes'in question having been delivered in New York by Pyle to the plaintiff on Sunday ; he said:

“ The particular point raised by this question has not been decided in Pennsylvania, . . . but with the light now before us, the Court hold that said notes are void by reason of their delivery to the plaintiffs on Sunday in New York city.”

The plaintiffs took a writ of error, and assigned for error the discharge of the rule for judgment for want of a sufficient affidavit of defence.

*W. W. Sehvyler,*for plaintiffs in error.

The authorities show that by the laws of New York a note executed and delivered, on Sunday is good. This question is to be decided by the laws of that State: 2 Kent’s Comm., 458 ; Story on Promissory Notes, sect. 48, a; Adams *v.*Gay, 19 Verm., 358. The rights of the parties are to be judged by that' law by which they intended, or rather by which they may justly be presumed to have bound themselves: 4 Kent’s Com., 460, n. 1. A construction which would make the contract legal is preferred to the opposite: 2 Pars, on Contr., *381500, note c, 504; note a, 584 ; Shore *v.*Wilson, 9 Cl. & Fin., 397. Under the laws of Pennsylvania the delivery was Í;ood: Shuman *v.*Shuman, 3 Casey, 93 ; Commonwealth *v.*Nesbit, 10 Casey, 405. As to the duress, he cited Stitt *v.*Garrett, 3 Wharton, 283 ; Comly *v.*Bryan, 5 Id., 265 ; Marsh *v.*Marshall, 3 P. F. Smith, 399, to' show- that the affidavit was not specific. The defence that the contract was made under duress cannot avail where the threatened imprisonment would have been lawful: Stouffer *v.*Latshaw, 2 Watts, 167; Eddy *v.*Herrin, 17 Maine, 338 ; Knapp *v.*Hyde, 60 Barb. N. Y., 80.

*H.*Green, for defendant in error.

A note given on Sunday is void : Kepner *v.*Keefer, 6 Watts, 231. The delivery is the test of validity: Sherman *v.*Roberts, 1 Grant, 261; Beitenman’s Appeal, 5 P. F. Smith, 183; Foreman *v.*Ahl, Id., 325. To deliver a notice of protest on Sunday is void : Rheem *v.*Carlisle Bank, 26 P. F. Smith, 132. Delivery is the essential part of the contract: 1 Parsons on Bills, 48 ; Marvin *v.*McCullum, 20 Johns, 288; Bromage *v.*Lloyd, 1 Exch., 32. The making, acceptance, or indorsement of a bill' or note is not complete without delivery: Cox *v.*Troy, 5 B. & Ald., 474; Brind *v.*Hampshire, 1 M. & W., 365 ; Marsten *v.*Allen, 8 Id,, 494.

This contract is to be determined by the laws of Pennsylvania. The notes were payable at the First National Bank at Easton, Pennsylvania. The interpretation of a contract is to be by the law of the place of performance: Story’s Conflict of Laws, sect. 280, 242 ; Hayden *v.*Davis, 3 McLean, 276.

Contracts which are in evasion or fraud of the laws of a country, or of the rights or duties of its subjects, contracts against *good morals,*or *against religion,*or against public rights, and contracts opposed to the *national policy,*or national institutions, are deemed nullities in every country affected by such considerations, although they may be valid by the laws of the place where made: Story on Conflict of Laws, sect. 243 ; Forbes *v.*Cochrane, 2 Barn. & Cress, 471; Greenwood *v.*Curtis, 6 Mass., 358 ; Story’s Conflict of Laws, sect. 258, 259.

As to duress, Lubin *v.*Price, 21 Mich., 518 ; Bane *v.*Dietrich, 52 Ill., 19; Stouffer *v.*Latshaw, 2 Watts, 165 ; Nicholls *v.*Nicholls, 1 Atk. 409 ; Hackett *v.*King, 6 Allen, 58 ; Miller *v.*Miller, 18 P. F. Smith, 486.

The indorser cau avail himself of the defence that the note was executed by the drawer under duress: Strong *v.*Grannis, 26 Barb., 122; Osborn *v.*Robbins, 3 N. Y., 365.

*382Judgment was entered in tbe Supreme Court, March 30th, 1876.

Per Curiam :

The act of Assembly authorizing writs of error to be taken when a Court of Common Pleas refuses to enter judgment on the ground of the sufficiency of an affidavit of defence, was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. Its effect is often to produce two writs of error in the same cause, instead of one, and is not to be encouraged. Such writs should be confined to plain errors of law. In doubtful cases, and especially in those requiring broad inquiry into facts, where the Court refuses judgment, the matter in controversy should go to the jury, as the proper tribunal to decide the cause under proper instructions from the Court. This is just such a case, and the refusal of the Court to give j udgment must be affirmed.

Judgment affirmed.