Thomas Burke to Neil Jamieson
Aug. 28. 1770
I yesterday received a Letter from Mr. Jefferson relative to the Suit Intended against Coll. Tucker’s Executors wherein he has Judiciously considered the several points upon which our Inquiry can properly turn in Chancery and an Abstract of his reasoning follows.
“The Question whether Mr. Hunt is to be considered as a Bill of Exchange or Simple Contract Creditor is properly triable at Law and will be finally determined upon the Suit Hunts vs Tuckers Executors on which the Hunts have appealed. The Subjecting Coll. Tucker’s Lands to American as well as British Debts under the act of parliament 5 Ge: 2d is foreign to the Jurisdiction of Chancery. I should rather advise that Executions be levied on the Lands by American Creditors. It would be fair, as the point is undetermined, to Indemnify the Sheriff, and Should he not withstanding this to levy the Executions I should think him liable. The next Object is, if this cannot be done, to oblige the Hunts and Creditors by Specialties to levy their Executions on the Lands and to leave the personal Assets to American Creditors by Simple Contract or if already leavied to let the Latter come in their place on the Lands. The 4th to prove a devastavit (or Waste) in the Executors and Subject them to make it good out of thier own Estates. The 5th to compel Mrs. Tucker to restore the Goods She purchased collusively or to restore to the Creditors their real value and lastly to prevent Taylor from recovering a greater proportion of the money due to him on Marriage Promise than other Creditors.1 This last point Mr. Jefferson thinks will be determined by the Suit now before the Court of Hustings or by appeal removed to the General Court. Now as Mr. Jefferson is of Opinion the most matterial Question will more properly be determined at Law we are next to consider how Such determination will Affect the original design of the Inquiry. If Executions are levied as Mr. Jefferson Advises they must be in the names of the particular plaintiffs in the Judgements, and perhaps no one or two plaintiffs would Chuse to run the Hazard of an Appeal. But I should apprehend all those who were determined to prosecute the Suit in Chancery even to an Appeal might more chearfully engage in this last design on Such Terms as the following Vizt. That all the money to be levied upon the Lands (tho levied in the names of particular Creditors) should be applied for the Satisfaction of the Joining Creditors, and all Expences of Law Suits and Appeals be born by them all in proportion and again the same Creditors to have a proportional Advantage of the money that might be recovered on the Questions brought before the Court of Chancery. The reason why I recommend Such a proceeding as this is because I am exceeding clear in my own Opinion that the Question on the 6 of Geor: 2d, altho’ it may go against us here, yet will Indubitably be for us on an Appeal home. Herein I am Strengthened by the uniform Construction of the Neighbouring Colonies upon that act and the clear and conclusive Oppinion of Mr. Dulany and also because I think it the most Speedy and Eligiable Way of determing this, by far the most Important Question, Since all were agreed to prosecute to all length the most tedious Way, I see no reason why they should not prosecute Jointly in this most Speedy Way. Thus then I would advise—Let Executions be Immediately levied on the Lands at Suit of the Joining Creditors or so many of them as the Lands will Satisfy. Let them Join in Indemnifying the Sheriff let the money levied by the Executions be applied to the Satisfaction of their Several claims So far as it will go on an Average and let them Jointly bear the Expence of Law Suits and Appeals then let those who are not Satisfied Join nominally in the Bill in Chancery which is to Litigate the other Questions, and let the monies recovered be averaged among the Joining Creditors, or the Expences proportionally born by them. By this Means in my humble Opinion will the Matters of greatest Importance be tried in the most Speedy Manner, and perhaps more to the advantage of the Creditors Joining against Mr. Hunt than it would otherwise be for a reason Obvious enough when it is considered that the Lands are not Sufficient to Satisfy Mr. Hunts Claim and that the personal Assets are already consumed in paying Debts of Superior Dignity. If Mr. Hunt has no preference (which I am convinced of) then the Executions are legally levied and the money will be left where the Law places it: on the other Hand if he has a preference the money must be refunded to him and the Creditors remain where they were. Now if Hunt has or has not A preference will be determined when Hunt Sues the Persons who will receive the money for the Lands and Charges them as having received money to his Use. Upon this they will defend them selves under the act of Parliament and whether the Act Subjects Lands to one Debt as well as an other will be the Question. This as I have already Observed will very probably go against us here because the general Court have a Standing Rule that the Question is never to be agitated again unless the Matter be sufficient for an Appeal and then they are resolved upon having it finally determined at home. I must now Submit whether the above method will not be most desireable and Should be glad to be informed whether it is approved of by the gentlemen Concerned and whether they will Indemnify the Sheriff. I must also observe that no time should be lost because it may be fatal. I must beg the favor of you to communicate this to them, and also Inform them that I am ready in behalf of Messrs. Cortlandt & Cuyler to come into the above Scheme. I should also wish that Mr. Thomas Stabler might be consulted on behalf of Mr. Reese Meredith. I shall Impatiently wait the Answer, and beg it may be Speedy that I may have time enough to prosecute the Suit before the October Court. I am Sir &c.
FC, autograph (NcDAH).
The earliest recorded connection between Burke and TJ is in a letter from TJ to Burke, 15 July 1770, now lost but mentioned in the present letter and acknowledged in Burke’s letter to TJ of 3 Sep., below. TJ’s letter dealt with “the Suit of Tuckers Creditors vs. his Executors” and its antecedents, as did most of the subsequent correspondence between the two lawyers in 1770–1771; the present note applies generally to this early series of legal letters. Respecting the Tucker case, TJ’s Account Book has this entry under 29 Aug. 1769: “Committed my opinion to writing in the case of Henry Tucker (Norfolk) charge 20/.” In his Case Book, same date, No. 325, TJ says the same thing, adding only the date for receipt of fee (30 Aug. 1770). No further record of TJ’s action in this case has been found in his legal papers, but Burke’s further letters indicate that TJ continued to serve as consultant in the case. In his letter book (whence all these letters are taken) Burke appended a summary of the case, as it then stood, to his letter of 10 July 1771, q.v., below. Mr. Hunt was a London creditor of Tucker’s estate; TJ’s Case Book, No. 465 (31 Oct. 1771), records TJ’s employment by the heirs of a Robert Tucker of Norfolk in a suit brought by the Hunts, merchants of London.
1. Closing quotation marks should probably be inserted here.