Keen v. Coleman

39 Pa. 299, 1861 Pa. LEXIS 199

• Court: Supreme Court of Pennsylvania
• Decided: May 6, 1861
• Status: Published

Opinion

The opinion of the court was delivered,

by Lowrie, C. J.

The defendant was a married woman when she gave this judgment-bond, and the court below decided that it is not made good by the fact that she represented herself to be single at the time she gave it, and thereby obtained the consideration for which it was given.

She may be liable to an action for the deceit practised by her; but she had no legal power to execute this bond, and by it she can not be legally bound. As in the case of infancy, it is not a question of privilege, but of legal incapacity to contract, that stands in the way of the plaintiff’s recovery on this bond. The wrong done can not make the contract good by way of estoppel, and the wrong itself will not always furnish a cause of action: 12 S. & R. 403; 11 Id. 305; 3 Rawle 351; 6 Watts 9. In England, the court refuses to set aside such' a judgment as this in a summary way, where the woman had represented herself as single, though it is conceded that it would be set aside on writ of error: Clancy on Married Women 81. The mode pursued here is a substitute for a writ of error, or audita querela. We do not see how there can be an estoppel involved in the very act to which the incapacity relates, that can take away that incapacity. If a legal incapacity can be removed by a fraudulent representation of capacity, then the legal incapacity would have only a moral bond or force, which is absurd.

Judgment affirmed.