Keen v. Coleman

• Decision Date: 06 May 1861
• Citation: Keen v. Coleman, 39 Pa. 299 (Pa. 1861)
• Court: Pennsylvania Supreme Court
• Parties: Keen v. Coleman.

39 Pa. 299

KeenversusColeman.

Supreme Court of Pennsylvania.

May 6, 1861.

ERROR to the District Court of Philadelphia.

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Wm. L. Hirst, F. C. Brewster, and Lucas Hirst, for plaintiff in error, argued that, as this was the first case of its character that had come up for adjudication, it must be decided on general principles, and as the rulings have been in the English courts.That, under these decisions, a married woman is answerable for her torts as if she were sole; and that force and fraud have always been classed together, because, in both cases, the consent of the injured party to the wrongful act is wanting: Bac.Abr., "Baron and Feme," G.;2 Kent'sCom. 149.That in actions against husband and wife, for the false representation of the wife, it was for the jury to say whether her statement was false and fraudulent: Wild v. Harris, 7 C. B. 999.A distinction must be taken between a bare false affirmation and a false affirmation where a fact is joined with it.Here a direct fraud was perpetrated, and a large amount of property obtained by it, under circumstances which rendered it impossible for plaintiff to detect.For such a fraud she is personally responsible: Thorwald v. Hayfrist, Dickens'sRep. 410; Vaughn v. Vanderstigen, Eng. Leg. Int., April 27th 1860.

To an action on this bond, she cannot set up her fraud as a defence, but is estopped in law and equity: 8 Wend. 480;3 Hill 215;5 Barb. 364;Cranch v. Sutton, 1 Grant 114; Pendleton v. Ritchie, 8 Casey 58.See also 1 Harris 380; 10 Barr 531;5 Carr. & Payne 484.

The opinion of the court was delivered, May 6th 1861, 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...