Page:United States Reports, Volume 1.djvu/24

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13
SUPREME COURT of Pennʃylvania.


1764.

without which fhe could not be faid to become a Party. Another variance infifted on was, that the examination required by the Cuftom muft be by a Juftice of the Peace, and in this Cafe W.P. is not faid to be a Juftice of the Peace, but a Juftice of the Court of Common Pleas.–It was further urged, that the Deed in this Cafe was void, for two reafons: 1ft Becaufe, though the Conveyance is to Truftees, yet the Ufe is to the Baron and his Heirs, which, by the Statue of Ufes, vefts the legal Eftate immediately in the Baron, and fo is no other than a Conveyance from the Feme to the Baron which is void. The 2d reafon, was, that the Deed wanted a Confideration, there being none mentioned but marriage and five fhillings. That the Marriage was paft, and a paft confideration is no confideration, and the Hufband, fo no confideration to her.

On the Part of the Defendant it was anfwered, that though by the Law of England a Feme Convert cannot convey her Eftate without an examination by Writ, yet in this country a different manner of examination has obtained from the firft fettlement of the Province, in fubftance the fame as an examination on a Fine, which probably in early days could not be levied here for want of fkill in the Profeffors of the Law ; and that now the greater part of the Titles in the Province depend, in fome link of the chain, upon this kind of Deeds, it would be highly inconvenient, and would introduce the utmoft confufion, to overfet them. That Common Recoveries have their validity from ufage, and that if this be an Error, it is within the maxim, Communis Error ƒacit Jus. As to the reafonablenefs of the ufage Brook. tit faits.§ 14.15 was cited to fhow an Examination of Feme Covert before the Lord Mayor in London was good without a Fine. And to fhow the force and extenfion of the maxim, Communis Error ƒacit Jus, many authorities were cited. Certh 283. 4. Sid..190. 2 Mod. 238. ₣ank, 162.250. Anderfon 49.2 Ab. Eq. Ca. 200. Hob. 83. Salk. 33. Col .Litt. 112. Shepherds Touchftone 516 Comb. 320. 342. Stiles 320. As to the variance between this Cafe nd the Ufage, it was faid the Feme had declared the executed the Deed with her free Confent, and that it muft be taken, the Magiftrate did his Duty in making her acquainted with the Contents. As to the other variance, it is notorious that a Juftice of the Common Pleas is a Juftice of the Peace, in this Province, being appointed to both Offices in one Commiffion, and the Court with ex Officio take notice of fo general a practice. As to the objections againft the validity of the Deed, it was anfwered that though a Deed would be void immediately from Baron to Feme, yet it would be good when made to Truftees to the Ufe of the Feme. Co. Litt. 112. And the confideration in the eye of the Law.

BY THE COURT after advifement : Thefe Deeds, and this mode of examination of Femes Covert on conveying their Eftates, having generally prevailed in this Province, from its firft fettlement, and underfone from time to time the no-

tice