From Thomas Burke
Norfolk August 19th. 1771.
I have your Favours of June and July 20th the first dated from Albermale the last from Williamsburg. I wish I had the Pleasure of Conferring with you when you were down but my business so Interposed it was not in my Power. The case of Plume vs. Portlock was thus, A Warrent of the Peace was Obtained vs. Plume, upon hearing the Court Continued the Recognizance. Costs Consequently accrued. Plume went to the Office enquired the amount and offered Payment. Mr. Boush the Clerk told him it was then Inconvenient to Inform him, but Assured him no Execution should Issue and that as soon as Convenient he would Send him a Copy of the Costs. The time of the Imprisonment of the Sailors Plume went to the Prison to give them some Norishment which being disagreable to J. Calvert and Portlock his Instrument Portlock being Sherriff Arrested Plume as on an Execution and detained him some little time in Prison. I happened to come by and was called by Plume to give him some advice. Upon his Relating the Circumstances I assured him Mr. Boush would not have decieved him so Ungenteely and advised him to pay the money and demand the Execution. Upon this Demand no Execution could be produced, and Mr. Portlock finding he was likely to be Detected discharged him out of Custody. Upon Enquiry at the Office it appeared Mr. Boush had kept his Word and that no Execution ever had Issued. It was very Evident that this was a Mallicious Arrest and Imprisonment and I hope Officers may be taught better. The case of McVaa & Wilson is Simple. Wilson entered into Bond to McVaa (the Condition will Inform you for what) and removed to Jamaica. Major William Orange was his Attorney here and had Effects. The Suit is to Subject those Effects. I think I recollect something about Indemnification and Security. I will send for McVaa and subjoin any more Partcular Account he gives me.
I am exceedingly at a Loss how to Proceed against Tuckers Executors. There are many Cases which seem to Authorise leaving out the Heir at Law and even Devisee. The rule laid down by Jekill is that such only to be parties against whom a Decree can be obtained. We can obtain no Decree except against the Executors. It also laid down that there must be a Demurer for want of Parties or Exceptions at hearing. In Either case our Bill will only lie over for Parties but the Gentlemen have Promisd me not to Demur and only to Submit to the Court whether the Lands are Assets in their Hands and what kind of Assets. Now if upon appeal we may be admitted to add Parties if once we get Hunts Claim and ours Involved together we gain our Point, and should we prevail here I suppose the Injunction for the Heirs may be so framed as to bring all Parties before the General Court. Consider then it will be from the Decree there we appeal and there will be no want of Parties Either if we are allowed to add them above or the Injunction Necessarily makes them so. Now whether we can add them above or not I am not clear. What think you of a Supplimental Bill above for that purpose? One thing is Certain if we Join Heir or Devisee here we are again Inevitably tied up by a Certiorari and we may as well Desist all together. In short Sir the Heir [does] not favor us, and we Expect as little Favor from the Devisee. At worst we can but Add Parties afterwards and it may not be amiss to make the Experiment in hope of Entangling Mr. Hunts affair with ours. I think the principle Reason given in the reporters for making the Heir a Party is that thereby the Will is Established as proved. Now Sir if you will Consider the Different ways of proving Wills here and at home I think it will appear to You there can be no Necessity for making him a party for that Purpose. And as to Devisee I am Inclined to think the Executors Answer which will set forth that all will fall short of payment of Debts will Sufficiently take off the force of any Objection on that account: were there any probability of a residue there would be a resulting Trust but as it is very clear there will not, I imagine an objection on that Account will be overuled. To you Sir I Submit the whole, and must Inform you that I have Just learned that Mr. Wyth is Informed of our purpose and have given Directions to the Clerk to furnish him with Copies as soon as filed nor will Mr. Taylor Agree to come to Trial untill Mr. Waller has Notice. He will however agree that in his Name a Motion be made to Change the Plea put in by the Devisee, or any other Step which in the General Court can prevent Mr. Hunt from getting an advantage. Upon the whole I am Inclined to think we must at length proceed [as] above by some means or Other. If you resolve on it you will be Pleased to let me know by the first Opportunity. Meantime If I can by any Means prevail on Mr. Taylor to proceed here it shall be done. I shall add nothing at present but I am &c.
Burke acknowledges TJ’s letter of 30 June, above, and a missing letter of 20 July. When TJ was at Norfolk does not appear. On the Tucker case, see note on Burke, 28 Aug. 1770.