SD1140. John Gordon to Edward Moulton-Barrett (father)
Published in The Brownings’ Correspondence, 4, 369 (in part).
5 Old Square
Linc. Inn
Novr 14th 1840
Barrett v Barrett
Compromise &c., with reference to the Late & the present Tenant in Tail.
With reference to the condition of the proceedings in Jamaica, since the decease of the late Tenant in Tail, they are defective– The Court of Equity (for convenience sake) allows a person having a vested remainder in Tail to represent (with the Tenant for life in possession) the whole inheritance, and, if the inheritance is sought to be affected in any way, declares the suit defective for want of parties if such a person lie not present; I apprehend, however, that, if the Court will make the order of dismission now sought, it will bind all the parties present on such order, and risk could only arise from the fact that the present Tenant in Tail is not bound by the Order made in his absence. That he would ever attempt to disturb the order, is so little within the range of probabilities that I think the Plaintiffs would do well to get the order of dismissal &c. without having recourse to the sort of supplemental Bill necessary for bringing him before the Court. That Moulton Barrett’s need not care whether he be present or not, and it is not for them to start the objection; but the contrary as delay & expence would arise in answering the supplemental Bill. To them no haven can arise, if the order be made, whether the Tenant in Tail be present or not, for they have a conveyance of the lands near Oxford & Cambridge, & the personal representative of George Goodin Barrett (with the concurrance of his cestui qui trusts) has released the demand against the Estates of Edward Barrett (the testator), & to these deeds the late Tenant in Tail was a party. Out of court, therefore, nothing more can be gained, and, if the Plaintiff will only dismiss their suit, I do not see whence any danger can come– As the Moulton Barrett’s, therefore, do not want it, I do not imagine that the Plaintiffs will consider the presence of the present Tenant in Tail worth the expence of a Supplemental Bill. The order is to be by consent, & the respective Solicitors will, no doubt, arrange it before going into Court, so that the Chancellor need not be hampered by their indecision on the point, and then, should he object to make the order without him, the Tenant in Tail can (by a gratis appearance for which Mr Edward Barrett Moulton-Barrett’s Counsel can (against the emergency) be instructed) get rid of the Chancellor’s difficulty.
With respect to order itself, it can, if the Chancellor require it, be altered by inserting a consent given by the present tenant in Tail just mentioning that the former one is deceased, after having signed the deeds, and given his consent for the purpose of a similar order.– The Draft order is not quite regular, in that part which orders payment of the compensation for the Slaves on the Estates of the Moulton Barretts. that money is not, & never was in Court & the Chancellor might with, as much or rather as little propriety, be called upon to order the Estates themselves over in the same manner. It was the object of the suit to bring those Estates into Court, when the demand, with which the Plaintiffs sought to charge it, should have been made out, & the pure Personalty been found insufficient to defray it. The money, however, stands to the credit of certain numbers in the Funds, & perhaps it might be as well if the Chancellor will do it witht difficulty on reference as after mentioned to get his Order for payment of it, for it is impossible to calculate the chances of any application to the board of Commissioners here.– I am not certain whether (as the Commissioners must have certified that there are counter claims against those numbers) their certificate of the counter claims having been withdrawn will not be called for by the accountant General in addition to the order.
I should in conclusion, suggest that a Petition, so far as the paying the money out of Court is concerned & not a motion, is the proper mode of obtaining the Order, & there is no reason why the whole order should be made on Petition. But I do not see how the Chancellor can make the order of payment of the entailed slave money of the Moulton Barretts, without a reference to the Master to see if the fund be clear, which is one reason for being contented (so far as they are concerned) with a simple order of dismissal of the suit, the effect of which would be to free the men of our Board of Commissioners from imaginary want of power to deal with the claims, & the counter claim being withdrawn will leave the claimant only before the Board
J. Gordon
Pownall & Cross
Staple Inn
Docket, in recipient’s hand: No. 7– Novr 14 1840.
Publication: None traced.
Manuscript: Eton College Library.
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