The note, being in the hands of an agent for collection, when it was forcibly seized by the defendant, was virtually in the possession of the plaintiff, to found an action of trespass on it. But whatever the form of the remedy, it is enough that the cause was tried without a declaration in the Common Pleas; and as on the face of the justice’s transcript, it is not said whether the action was trespass or case, we are at liberty to treat it as the one or the other, according to the circumstances disclosed by the evidence.
The remaining assignments of errors are the same in substance. It is a part of the case, that the note had been extorted by unlawful arrest and detention of the person, as compensation for getting the plaintiff’s daughter with child; and the court charged that the duress would not avail the defendant while he retained in his possession a written contract of indemnity against liability to support the child. Suppose the action were founded on the note, not on the spoliation of it; and the one case would be just as strong as the other — would the defendant be precluded from showing the duress because he held a guaranty, which would fall dead with the note of which it was the consideration ? Nothing is more true than that he could not enforce the one, and resist the other; and the want of delivering up the guaranty before it was exploded by a verdict against the plaintiff for the note, ought not to have estopped the defendant from showing the truth.
Judgment reversed, and a venire de novo awarded.