1764.
S. his Wife appeared before W. P. Eſquire, then one of the Juſtices of the Court of Common Pleas, for the County of Philadelphia, and acknowledged the ſaid Indenture to be their Deed, and that the ſaid Sarah was then and there, ſecretly and apart from ſaid Huſband, examined by the ſaid W. P. and on ſuch private examination did declare, that ſhe did ſign, ſeal and execute the ſaid Indenture with her full free and voluntary Conſent, which acknowledgement and examination were then indorſed by the ſaid W. P. under his hand and ſeal, upon the Indenture. The ſpecial Verdict goes on and finds, that for fifty Years and upwards, it had been the conſtant practiſe and uſage of the Province of Pennſylvania, in caſes where Baron and Feme have been deſirous to ſettle, ſell and diſooſe of the Eſtate of the Feme, for the Baron and Feme to join in a Deed or Deeds, and for the Feme to go before some Juſtice of the Peace, in the County where the Lands lye, out of Court, and for the ſaid Juſtice to examine such Feme in private and apart from her Huſband, reſpecting her ſigning and executing ſuch Deed, and to interrogate her whether ſhe became a Party to and executed ſuch Deed with her full and free conſent, and on her declaration that ſhe freely conſented, for the Juſtice to certify the ſame under his hand and ſeal. And that a great number of Titles to valuable Eſtates in this Province, were held under, and did depend upon Deeds executed by Baron and Feme, in manner aforeſaid. And that the Titles to ſuch Eſtates had never before been called into queſtion, but that ſuch Deeds of Femes Covert and their Huſbands had always been allowed to be given in evidence in Courts of Juſtice; that Scriveners had generally conducted themſelves by this Uſage, in transferring Eſtates, and that only two Fines had ever been levied in this Province for conveying the Eſtates of Femes Covert. The Jury further found that the ſaid Sarah died without having any Iſſue born alive, and the Plaintiffs Wife was one of her Heirs at Law.
The principal queſtion was, whether this mode of conveyance of the Eſtates of Femes Covert could be ſupported by the Uſage, as found by the Jury.
On the Part of the Plaintiff it was urged, that by Law a Femme Covert cannot convey her Eſtate but by fine, in which ſhe muſt be examined by Writ; that the Uſage in this caſe was not ſufficient to alter the Law, not being from time immemorial, and was unreaſonable, becauſe it had no lawful commencement. a Feme being ſuppoſed by the Law to be under the coercion of her Huſband; and for this purpoſe Godb. 143. was cited.— That ſuppoſing the cuſtom good, the Deed in the preſent caſe was variant from the cuſtom as found in the ſpecial Verdict; for that the Uſage ratified this kind of Conveyance only in ſuch caſes, where the Feme was willing and deſirous to convey, and where ſhe declared ſhe became a Party to the Deed freely; and that it is not found the Feme in this caſe was willing and deſirous, and had declared ſhe became a Party thereto; for though it is ſet forth, that ſhe declared ſhe executed the Deed freely, yet it does not appear the Deed was read, or the contents made known unto her,
