From Thomas Burke
[ca. April 1771]
I have been labouring to prevail on Tuckers Executors to come to a Speedy trial of the Cause, but without Success. Mr. Taylor seems determined to remove it by if possible, and even Mr. Wallers advice to the Contrary Seems to have no Effect on him. I fear we must have recourse to an Injunction unless It may be your Opinion that if ever Mr. Hunt Subjects the lands we shall be able to recover their amount from the Executors upon making it appear that they are Assets in their Hands and ought to be administered legally. This I own is my Opinion; for if the in the Will Subjecting them to pay Debts, and directing the Executors to pay those Debts Impowers the Executors to Administer, they must surely administer legally, or submit to the legal penalty for breach or Neglect of Duty, at all events I apprehend there is sufficient reason demanding an Injunction. Great part of the Subject which at least it is probable the Executor is obliged to administer otherwise is in danger by legal Judgement being taken out of his power, and Injury must follow either to him or the Creditors. Again it is Certain the Testator has subjected his Estate Generally, and here a particular Creditor endeavours to engrove [engross?] the whole benefit and without giving the Executor an Opportunity of defending if he claims any advantage from the 5 G:2 the 3d and 4W: & M is expressly for the Creditors when it directs that all or appointments for payment of Debts shall be in force. If Mr. Hunt prevails at Law this is Impossible, and he must prevail without the Interposition of Chancery. I have ventured upon these few Hints on which I am satisfied you will Improve if they deserve it. If not your own Judgement will better and I shall submit entirely to your Council.
I am next to inform you that the Revd. Mr. Agnew Incumbent of Nansemond, or Suffolk Parish has lately appealed from a Judgement of Nd. Court and I must beg your appearing and Conducting it for him. Has in it nothing : want of a Declaration will save you all trouble. Among the Causes on Mr. Blairs Docket which I directed him to put under your Case is one Reid vs. Snaip & al. in Chancery to Stay Effects &c. I must beg of you to attend particularly to it, and if the Effects can be Obtain’d on security next April, I will procure it. I shall furnish you with Documents. In April Sir I will point out to you the other and Inform you as much as I can of their Circumstances.
We must watch Attentively in the affair of Tuckers Creditors. Can we procure a Sale of the Lands and leave to Contend for the Money? Would it not become a Court of Equity to make some such Order and prevent Waste that happens every day in in so valuable a subject?
FC (NcDAH). The blanks are in the MS, attesting the clerk’s difficulty in reading Burke’s legal style and hand.
The letter may be dated with some confidence in Apr. 1771, for TJ stated in his Case Book, 9 Apr. 1771, that he had received a letter from Burke asking him to act for the Rev. John Agnew of Nansemond co. in a suit there summarized (No. 530); Reid vs. Snaip is not listed in the index to TJ’s Case Book. On the Tucker case, see note on Burke to Jamieson, 28 Aug. 1770.