From Thomas Burke
Norfolk July 10th. 1771.
I have at length prevailed on Mr. Taylor to answer a Bill in our Court spedily, and I here inclose you a Draught of what I purpose filing which you will please return with your remarks and Improvements. We purpose not Coming into Court untill all our papers are ready and then to set it for hearing immediately. If the Decree here be in our Favor we are to give him Security for performing it and if against us we Immediately appeal, ’tis also purposed that the Heir and Devisee (who are not Parties to our Bill) pray an Injunction whereon the Question respecting our claims shall be discussed before the General Court, Viz. whether the Decree here taking from them the Assets which they have Confessed and vesting them in the Executor for Payment of Debts is agreable to Equity and a Sufficient reason to excuse them from their Plea. Hereby we Involve Hunts Judgments with the Determination of our Question and all must Depend on the appeal at Home. The reason for not making the Heir or Devisee party to our Bill is to prevent the Delay they would occasion, and the Influence of Mr. Hunt over them Operating to our Disadvantage, I believe we could Support the Position that the making them parties is not Necessary. Vid: Harris & Ingledew 3 Pr. Will: [Peere Williams] also the rule that none should be parties but such against whom we can have a Decree. I shall be Glad to have Your Answer as soon as your Leizure will permit. I am &c.
burke’s statement of the tucker case
The late Henry Tucker delivered Bonds to Thomas Burke and Directed him to apply for the money due on them. By a written order he directed the money when recieved to be paid to Thomas Roberts to whom he was Indebted. Thomas Burke applied for the money before Henry Tuckers Death and the Obligor promised payment but it was not then Convenient, whereupon Thomas Burke Informing Captain Roberts of this Circumstance promised to pay the money to him as soon as it should be recieved. Henry Tucker dying and Mr. Jameison taking Administration, Thomas Burke on the one hand is forbidden to recieve or pay According to Henry Tuckers Directions by the Administrator and on the other he is commanded and required to apply for the money and pay it agreeable thereto. The Bonds are for Large sums but only a Ballance of £34 remains due on them. When the Ballance was £100 or more Henry Tucker drew an order for it in favor of Messrs. Gilchrist & Taylor or James Gilchrist, it was accepted and by Payments reduced to the £34 when Henry Tucker took up the order and put that and the Bonds in the Hands of Thomas Burke as aforesaid.
Mr. Jameison Submits to Mr. Wythe whether he as Administrator is Intitled to the Ballance due on those Bonds? And Whether he can Lawfully forbid the recieving and paying agreeable to Henry Tucker’s Order?
See Mr. Wythe’s opinion at the End of this Book.
FC (NcDAH). The statement of the case follows the copy of Burke’s letter in his letter book; there is no evidence that the statement was sent to TJ.
Wythe’s opinion is unfortunately missing from Burke’s letter book, which lacks the pages at the end.