To Bushrod Washington
Mount Vernon 9th Octr 1797
Mr Thomas Pearson, heir in tail to Simon Pearson his brother, has brought suit in the Court of this County for the lands which the latter sold to Willm Triplett, George Johnson & myself, five & thirty years ago.1
I understand from Colo. Simms who is Pearsons Lawyer, that his complaint is founded upon some irregularity in the proceedings of the Jury, who met on the land to value the same, pursuant to a Writ of Ad quod damnum. And the examination of the Evidence to prove these irregularities, went (for I attended) to the establishment of two points—1st that there was no survey of the premises in presence of the Jury, at the time of their enquiry into the value of the land. and 2⟨ly⟩ that the said Jury did not explore it sufficiently to ascertain with exactness, what the real value of the land was.
This is the amount of Grafton Kirks evidence who was one of the Jurors, and who, from your practice in Fairfax Court you may have learnt is a rare hand at all obsolete claims that depend much on a good Memory.2
As I shall be ultimately affected in this business if Pearsons claim obtains (having sold my part of the tract (178 acres) to Mr Lund Washington, [)] it behoves me to look into the matter timously.3 Let me then ask your opinion on the following points?
1st Does the Law providing for the Docking of Entails, by a Writ of Ad quod damnum, make a Survey in presence of the Jury an essential part of the proceedings?4
The Writ itself (of which I retained a copy) directing the Sheriff to Summon respectable men of his County for the purpo⟨se⟩ of ascertaining the value of the land &ca requires no such thing.5
2d Who is to judge of the mode by which a Jury on Oath is to report their opinion of the value of the land, if they are not to do it themselves?
Mr Kirk swears he did not on that day traverse a foot of the land. Why? because says he, living adjoining thereto, I could not be made better acquainted with it than I was; neither did John Askins (another of the Jury men) stir from the house at which they met, on the Land.6 why again?—because John Askins knew it as well as he did. The rest of the Jurors he acknowledges rode o⟨ut⟩ but were not gone long enough to go over a quarter part of the land. These, if not the words are the litteral meaning of them, and the Sum of Grafton Kirks Evidence. No tampering with the Jury to under value the land, is even hinted at. And the transfers, devises, & descent to Simon Pearson are admitd to be good, in order to prove that the said Simon held the Land in fee tail, and dying (as they say) without legitimate children, that Thomas Pearson his brother is heir in Tail.
3d Whether as Simon was lawfully married, and never legally divorced, the Childn by that Woman though begotten (no matter by whom) in the state of Separation from him, is not a bar to the claim of Thomas?7
4th What operation will the act of Assembly of Virginia for Docking all Entails ⟨pas⟩sed many years after the land in dispute was Docked by a Writ of Ad quod damnum, and sold (in 1762), and many years too before the death of Simon Pearson, which only happened last Spring, have on this case?8 It being understood that the Said Simon conveyed the 178 acres to me with a general Warrantee.
5th I would ask how far my conveyance of the said land to Mr L. Washington with a General Warrantee also, makes me liable for the buildings as well as the Land, which have been placed thereon? and
6th Whether I had better interest myself in defending the suit already commenced in this county court, or await the decision there & take it up in the dernier resort if it shd be adv⟨erse⟩.
I wish also, as the case in myjudgmt turns upon simple points wch do not require much study or research, to be informed (confidentially) whether, in your opinion, Mr Swans demand for defending the suit is not unreason⟨able?⟩ viz. $100 in hand, and the like sum at the close of the business?9
You may think me an unprofitable applicant in asking opinions, & requiring services of you without dousing my money;10 but pay day may come. If the cause should go to the higher Courts, I shall expect you will appear for me, and Mr Marshall also (if you shd not have quit the practice). If the latter should not be returned in time, say who else had ⟨I best⟩ employ? I beg you will send me, & as soon as you can, certified copies, from the Records in Richmond, of the Papers mentioned in the enclosed.11 With sincere friendship I remain Your most Affecte Uncle
P.S. Whether Colo. Simms has any thing in petto, I am unable to say—I am told however that he is sanguine—& some add that he is to go snacks.12
ALS (letterpress copy), ViMtvL; LB, DLC:GW.
1. GW purchased a 178–acre tract from Simon Pearson (c.1738–1797) of Fairfax County in 1763. This land was part of a larger entailed tract, and Pearson, by a writ of ad quod damnum, broke the entail and sold different parts of the land to GW, George Johnston (d. 1766), and William Triplett (d. 1803). See Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 1:268, and Cash Accounts, January 1762, and note 13, and Cash Accounts, January 1763, and note 1.
2. Charles Simms (1755–1819) was one of the leading lawyers in Alexandria. Grafton Kirk was married to Mary Carpenter, widow of Richard Carpenter (d. 1750) who owned land adjoining Pearson’s tract.
3. The 178 acres were a part of the tract of land that GW deeded in 1785 to his cousin and manager Lund Washington. The Pearson tract, along with land GW had bought from John and George Ashford and a small piece of wasteland, comprised Lund Washington’s farm Hayfield. See Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 1:240–41, 4:80–81.
4. The law allowing docking of entails by ad quod damnum and passed in 1748 was entitled “An Act for settling the Titles and Bounds of Lands, and preventing unlawful Hunting and Ranging” (5 Hening 408–31).
5. The writ has not been found, but Pearson’s deed, dated 14 Feb. 1763, dates the writ 1 April 1762 (DLC:GW).
6. John Askins is probably John Askew, a carpenter and joiner who worked for GW from 1759 to 1767.
7. Simon Pearson’s estranged wife, Milkey (Milkah) Trammell Pearson, who was still alive, had been living apart from him since about 1760.
8. The Virginia act for abolishing all entails, entitled “An Act declaring tenants of lands or slaves in taille to hold the same in fee simple,” was passed in 1776 (9 Hening 226–27).
9. Thomas Swann, an Alexandria lawyer, was representing Lund Washington’s widow, Elizabeth Foote Washington, and others in the suit brought by Thomas Pearson. Swann was later to serve for many years as district attorney for the District of Columbia.
10. The OED gives as one meaning of the verb douse: “to throw down, table (money),” and cites GW’s use of the word here.
11. See Bushrod Washington to GW, 25 Oct., n.1. The enclosure has not been found. In the Fairfax County Record of Surveys, 1742–1856, p. 77, is an undated document entitled: “Survey and Division of That Part of Pearson’s Tract Pattened by Wm Williams laying on the No. Wt side of the road leading from Alexandria to Colchester.” This document is copied in the book immediately before a survey dated 13 April 1798. The survey was made at the request of Elizabeth Foote Washington and Maj. William Johnston (1752–1815), an Alexandria lawyer and son of George Johnston (d. 1766). The purpose was to have some part of the land laid off out of Mrs. Washington’s land for William Triplett.
12. “In petto” means “in private”; to “go Snacks” means to have a share in something or divide something.