In 1762 Simon Pearson being seized of an estate in fee tail in 178 acres conveyed the same by deed of Bargain & Sale to George Washington Esq. with a general warranty, having first sued out a writ of ad quod damnum for the purpose of docking the intail, and which was regularly executed according to Law, unless the following objections to it, should be deemed valid. 1. That the Land was not surveyed in presence of the Jury & 2dly The Jurors did not explore the Land sufficiently (as it is contended) to enable them to Judge respecting it's value.

     Simon Pearson died long since the year 1776 viz. in 179[<2m#>] leaving children born during wedlock but whose legitimacy is questioned on account of his seperation from his wife before their birth & afterwards.

     Thomas Pearson the brother of Simon has commenced a suit for this Land.

     The first question is, whether a survey was absolutely necessary to give validity to the proceedings under the writ of ad quod damnum, & whether the Inquistion can be impeached on account of the Jurors not having examined the Land at the time they gave it.

     Answer. The Law of 1748 C. 1. S. 16 which requires the Surveyor to attend & to survey the Land is meerly directory to him. He is to do it, "the better to enable the Jury to Judge of the value of the Land, & to ascertain the number of acres in the Tract." This was certainly not intended as an essentiel part of the proceedings, unless the Jury for their Satisfaction required it. according to the literal meaning of the clause, the Surveyor might only go round the bounds of the Land, and yet by doing so, it would not enable the Jury to Judge of the value of the Land, tho' it might inform them of the quantity. the literal interpretation of the words then, are not to be taken. we must therefore resort to the meaning & intention of the Legislature, which was to give information to the Jury if necessary; for instance they might require to know the proportions of meadow, of wood Land & the like, if such be their wish, the surveyor is by this Law order'd to attend, which otherwise he would not have been obliged to do. But if the Jury be satisfied upon these subjects without a Survey (and that they may be no question can exist) the law could never contemplate the doing of a vain & unecessary thing. If the Jury from their own knowledge can Judge of the value by other means than a survey, the Law could not mean to put the parties to the expence of a Survey, the only object of which is declared to be, to give information to the Jury upon those points. The same observations Apply to the supposed necessity of the Juries' exploring the Land. In this Case, the Jurors have declared themselves satisfied as to the value of the Land, and it can never become a question at this day, by what means they were enabled to form their Judgment. The presumption of Law is in favor of the inquisition. where a Tenant in tail has a power to dock the intail & does so, it is to be presumed that all that things necessary thereto were rightly done unless the contrary appear.¹ and tho' it cannot in this case be presumed that there was a survey; yet it is to be infer'd that the Jury had every information necessary to direct their Judgment & that the Land was truly valued.

     2d Question. whether as Simon Pearson was lawfully married, & never legally divorced, the issue of his wife tho' begotten during their seperation, is not a bar to the claim of Thomas.

     answer. this question will depend upon the evedence in the cause. Notwithstanding a seperation by consent, access is to be presumed unless the contrary is proved— the proof of nonaccess will be upon the plaintiff, & it may not be easy for him to furnish it. See Salk. 123.

     3d Quest. what operation will the Law docking entails have upon this case?

     answer. If Simon Pearson had not conveyed this Land until after the year 1776, no question could exist of his right to pass an absolute fee. But in this case, the conveyance was made before that year, and when he had no power to defeat the right of the issue in tail unless under the Law of 1748. suppose then for argument sake, that a writ of ad quod damnum had not issued at all, what would be the effect of the Act of 1776, upon the Conveyance made before that period?

     A Statutary conveyance by Tenant in tail, paper a base fee, defeasible only by the issue— his title is protected by the Statute de donis. But if the Tenant in tail shall afterward suffer a Common recovery, the protection of the Statute is defeated, the tenant in tail gains to himself a fee, the privity of the estate tail is gone, and the right of the issue is consequently at an end. 3 Burr. 17. 05. 1 Atk. Rep. 3. Here then is a case where an estate defeasible in its origin, is rendered absolute by a posterior act unfettering the estate tail.

     Let us apply the principle of these cases to the present. The act of 1776 was intended to annihilate every thing like intails. compleatly to defeat the rights of the issue, & of those in remainder or reversion. in its operation it is at least, as extensive as a Common recovery. it is in substance I think a compleat repeal of the Statute de donis, upon which alone the issue can found any right to question the conveyance of the tenant in tail. deprive him of that, and the Tenant after issue born might dispose of the Estate at Common Law. That the intention of the Legislature was to do away the Statute is not only apparent from every part of this Law, but is still further proved by the Act of 1785 c. 62 in which the Legislature supposing that the former Law had left Estates tail in the situation of conditional fees at Common Law Enact "that all Estates which before the Law of 1776 would have been estates in fee tail and which by that Law are estates in fee simple shall from that time be discharged of the conditions annexed thereto by the Common law, restraining alienations before the donee had issue." the residue of this clause is also worthy of observation. The Expressions in the act of 1776 are remarkably strong; the Tenant in tail is considered as having the same rights as if the deed or Will which created the entail had instead thereof passed an estate in fee simple to him.

     The only expression in the Law, which can furnish even a plausible argument against this construction of it, is that which speaks of an estate tail in possession. it may be contended, that Simon Pearson when that Law passed, was not in possession. But this argument cannot be sound, because opposed to the clear & obvious meaning of the Law— The word possession is used, in contradistinction to estates tail limited in remainder. if a contrary exposition were admitted, the rights of the issue is tail would in all cases of conveyances prior to 1776 be preserved tho' the avowed intention of the Law was to defeat them, & tho' all other rights except those of the issue in tail, the remainder man & Reversioner are expressly saved. But the most compleat answer to my mind is, that the Statute de donis is by this Law virtually repealed & the rights of the issue in tail consequently defeated.

     Upon the whole I am clearly of opinion that if the objections to the proceedings under the writ of ad quod damnum were as well founded as I think them otherwise, the subsequent acts of Assembly defeating estates tail, have secured the title of the purchaser under Simon Pearson.

     I will meerly add, that I would advise the finding of a special verdict in this case, that the subject may come fairly before the Superior Courts.