1764.
without which ſhe could not be ſaid to become a Party. Another variance inſiſted on was, that the examination required by the Cuſtom muſt be by a Juſtice of the Peace, and in this Caſe W. P. is not ſaid to be a Juſtice of the Peace, but a Juſtice of the Court of Common Pleas.—It was further urged, that the Deed in this Caſe was void, for two reaſons: 1ſt Becauſe, though the Conveyance is to Truſtees, yet the Uſe is to the Baron and his Heirs, which, by the Statue of Uſes, veſts the legal Eſtate immediately in the Baron, and ſo is no other than a Conveyance from the Feme to the Baron which is void. The 2d reaſon was, that the Deed wanted a Conſideration, there being none mentioned but marriage and five ſhillings. That the Marriage was paſt, and a paſt confideration is no conſideration, and the five ſhillings ſaid to be paid to the Feme was in fact the property of the Huſband, ſo no conſideration to her.
On the Part of the Defendant it was anſwered, that though by the Law of England a Feme Covert cannot convey her Eſtate without an examination by Writ, yet in this country a different manner of examination has obtained from the firſt ſettlement of the Province, in ſubſtance the ſame as an examination on a Fine, which probably in early days could not be levied here for want of ſkill in the Profeſſors of the Law; and that now the greater part of the Titles in the Province depend, in ſome link of the chain, upon this kind of Deeds, it would be highly inconvenient, and would introduce the utmoſt confuſion, to overſet them. That Common Recoveries have their validity from uſage, and that if this be an Error, it is within the maxim, Communis Error facit Jus. As to the reaſonableneſs of the uſage Brook. tit. faits. § 14. 15. was cited to ſhew an Examination of Feme Covert before the Lord Mayor in London was good without a Fine. And to ſhow the force and extenſion of the maxim, Communis Error facit Jus, many authorities were cited. Carth. 283. 4. Sid. 190. 2 Mod. 238. Jenk. 162. 250. Anderſon 49. 2 Ab. Eq. Ca. 200. Hob. 83. Salk. 33. Co. Litt. 112. Shepherds Touchſtone 516. Comb. 320. 342. Stiles 320. As to the variance between this Caſe and the Uſage, it was ſaid the Feme had declared ſhe executed the Deed with her free Conſent, and that it muſt be taken, the Magiſtrate did his Duty in making her acquainted with the Contents. As to the other variance, it is notorious that a Juſtice of the Common Pleas is a Juſtice of the Peace, in this Province, being appointed to both Offices in one Commiſſion, and the Court will ex Officio take notice of ſo general a practice. As to the objections againſt the validity of the Deed, it was anſwered that though a Deed would be void immediately from Baron to Feme, yet it would be good when made to Truſtees to the Uſe of the Feme. Co. Litt. 112. And the conſideration of five ſhillings, though not a valuable one, is a good conſideration in the eye of the Law.
By the Court, after adviſement: Theſe Deeds, and this mode of examination of Femes Covert on conveying their Eſtates, having generally prevailed in this Province, from its firſt ſettlement, and undergone from time to time the no-
