Page:United States Reports, Volume 1.djvu/23

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12
Cases ruled and adjudged in the


1764.

S. his Wife appeared before W.P. Efquire, then one of the Juftices of his Court of Common Plens, for the County of Philadelphia, and acknowledged the faid Indenture to be their Deed, and that the faid Sarah was then and there, fecretly and apart from faid Hufband, examined by the faid W.P. and on fuch private examination did declare, that fhe did fign, feal and execute the fiad Indenture with her full free and voluntary Confent, which acknowledgement and examination were then indorfed by the faid W.P. under his hand and feal, upon the Indentured. The Fpecial Verdict goes on and finds, that for fifty Years and upwards, it had been the conftant practice and ufage of the Province of Pennfylvania, in cafes where Baron and Feme have been defirous to fettle, fell and difoofe of the Eftate of the Feme, for the Baron and Feme to join in a Deed of Deeds, and for the Feme in private and apart from her Hufband, refpecting her figning and executing fuch Deed, and to interrogate her whether fhe became a Party to and executed fuch Deed with her full and free confent, and on her declaration that the freely confented, for the Juftice to certify the fame under his hand and feal. And that a great number of Titles to valuable Eftates in this Province, were held under, and did depend upon Deeds executed by Baron and Femes Covert and their Hufbands had always been allowed to be given in evidence in Courts of Juftice ; that Scriveners had generally conducted themfelves by this Ufage, in transferring Eftates, and that only two Fines had ever been levied in this Province for conveying the Eftates of Femes Covert. The Jury further found that the faid Sarah died without having any (illegible text)born alive, and the Plaintiffs Wife was one of her Heirs at Law.

The principal queftion, was, whether this mode of conveyance of the Eftates of Femme Covert could be fupported by the Ufage, as found by the Jury.

On the Part of the Plaintiff it was urged, that by Law a Femme Covert cannot convey her Eftate but by fine, in which fhe muft be examined by Writ ; that the Ufage in this cafe was not fufficient to alter the Law, to be under the coercion of her Hufband ; and for this purpofe Godb I. 43. was cited.– That fuppofing the cuftom good, the Deed in the prefent cafe was variant from the cuftom as found in the fpecial Verdict ; for that the Ufage ratified this kind of Conveyance only in fuch cafes, where the Feme was willing and defirous to convey, and were the declared fhe becamea Party to the Deed freely ; and that it is not found the Femme in this cafe was willingly and defirous, and had declared fhe became a Party thereto ; for though it is fet forth, that fhe declared fhe executed the Deed freely, yet it does not appear the Deed was read, or the contents made known unto her,

without