BY THE COURT.–The ftrict Rules of Law with regard to Evidence ought not to be extended to Mercantile Tranfactions. In this Cafe, on proving the hand Writing of the Factor, let the Account of Sales be given in Evidences ; which was accordingly done.
EBT for Obligation.–On the plea of payment Defendants offered to give no Confideration in Evidence. Objected, that the Confideration of a Bond is not enquirable into, the paffing the Bond being a gift in Law of the money.–To this it was anfwered, and fo ruled BY THE COURT that mere being no Court of Chancery in this Province, there is a neceflity, in order to prevent a failure of Juftice, to let the Defendants in under the plea of payment to prove miftake or want of confideration :And this the Chief Juftice faid he had known to be the conftant practice of the Courts of Juftice in this Province for thirty nine Years paft.
For the Plaintiff, the following cafes were cited:Plowd. 308. b. Gilb. Rep. 154. Hard. 200. 3. P. Will. 222.
JECTMENT for Ground in the City of Philadelphia. Mercy Mafters being feized in for married Peter Lloyd. Peter Lloyd and Mercy his Wife convey to Ralph Albetfon in 1727 Ralph Albertfonreconveys to Peter Lloyd the Land in queftion. Afterwards, in 1738, on a Judgment againft Peter Lloyd, the Land in queftion was taken in Execution and fold by the Sheriff to the Defendant for Ł 1300.–Plaintiff claims as (illegible text)at Law to Mercy Lloyd, infifting that his Mother being a Feme Convert could not legally convey her eftate without an examination by Writ. And though in the cafe of Davey verfus Turner tried in this Court September 1764, [♦] it was ruled that an acknowledgement of the Deed on a private examination before a Juftice of peace, was fufficient under a long Ufage to fanctify her Deed, though not ftrictly agreeable to Law ; yet here there was not even that acknowledgment or private examination.
But it appearing in Evidence, that it had been the conftant Ufage of the Providence formerly for Femes Covert to convey their Eftates in this manner, without an acknowledgment or feparate examination ; And that there were a great number of valuable Eftates held under fuch Titles, which it would be dangerous to impeach at this time of day, THE COURT gave a Charge to the Jury in favour of the Defendants, founded on the Maxim Communis Error ƒacit Jus. And the Jury accordingly found for the Defendant. [♦]See Ant. p. 11.