Gauff's Appeal , 3 Walker 152 ( 1881 )

' The Supreme Court affirmed the decree of the Common Pleas on May 2nd, 1881, in the following opinion, per

Green, J.:

Practically the only question in this case is a question of' payment. The appellant, being a married woman, was a creditor of her brother, who had made an assignment for the benefit of creditors. She was entitled to a dividend from the assets in the hands of the assignee. The latter in paying her the amount of her dividend gave her part in- cash and part in a note which she had given her brother. She was under no obligation to accept the note as part payment, as she had executed it during her coverture. But she chose tp waive her defense of coverture and accepted the note as so much money, and she receipted to the assignee for the whole amount of her dividend, as she had a perfect right to do. Nearly four years later she applied to the Court below for a ji. fa. against the assignee to compel him to pay her in money the amount represented by the note. In the mean time the assignee had filed another account charging himself with the amount of her note which had thus been paid, and had paid out the fund to creditors to whom distribution had been made. In these circumstance the Court below very properly refused to award the fi. fa., holding that it would be an act of gross injustice to the assignee to do so. The' appellant herself testified that she understood at the time that the amount distributed to her was •over $700, and that when she gave the receipt it was her intention to receipt for all the money the assignee paid to her, including the amount of the note which he held against her. While it is very true that a married woman is under no legal .obligation to pay her promissory note, yet if she actually does pay it she has no right to recover back the money thus voluntarily paid to one who received it in good conscience, and might, therefore, lawfully keep it. If she was mistaken as to her legal right to refuse taking the note as payment it was a mistake of the law, which excuses no' une ; Ege vs. Kooutz, 3 Pa., 113.

Decree affirmed and appeal dismissed at the costs of the appelant.