Page:Notes and Queries - Series 12 - Volume 2.djvu/111

 12 s. ii. AUG. 5, 1916.] NOTES AND QUERIES.

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Term, 18-19 Geo. II., Roll 210, membrane 741) state that "on Friday next after the morrow of the Holy Trinity \i.e., June 14, 1745] before the Lord the King at Westminster cometh Tristram Walton by- Alexander Powell his Attorney and bringeth in the Court his certain Bill against Arthur Collier of the City of New Sarum in the County of Wilts Doctor of Laws .... a plea of debt .... to wit Tristram Walton complains of Arthur Collier of a plea that he render to him 400/. of lawful money which he owes to and unjustly detains from him for ttiat the said Arthur on 22nd September 1739 at New Sarum by his certain writing obligatory sealed with the seal of the said Arthur and now shewn to the Court. .. .acknowledged himself to be held and firmly bound to the said Tristram in the said 400?. to be paid to the said Tristram when he should be thereunto requested. Nevertheless the said Arthur although often requested .... hath not yet paid the said 400Z. but hath hitherto entirely refused to the damage of the said Tristram 40Z."

The plaintiff, being dissatisfied with " common bail," obtained an order for " special bail."

" Upon this James Harris of the City of New Sarum ha the County of Wilts Esquire and Henry Fielding of Boswell Court in the parish of St. Clement Danes in the County of Middlesex Esquire come into the Court of our Lord the King before the King himself at Westminster hi their proper persons and become Pledges and each of them by himself did become Pledge for the said Arthur that if it should happen that the said Arthur should be condemned in the plea aforesaid then the said Pledges did grant and each of them for himself did grant that as well the said Debt as all such damages costs and charges as should be adjudged to the said Tristram in that behalf should be made of their and each of their lands and chattels and be levyed to the use of the said Tristram if it should happen that the said Arthur should not pay the said debt and damages costs and charges to the said Tristram or render himself on that occasion to the Prison of the Marshal of the Marshalsea of our Lord the King before the King himself."

The action was tried, and judgment entered for the plaintiff ; whereupon the defendant, Collier, " demurred," i.e., raised a legal objection in which the facts are admitted to be true, but denying the sufficiency of the facts in point of law to support the claim. The demurrer is signed by Fielding, but being in " common form " it offers little opportunity to judge of his skill as a draftsman. The demurrer was over-ruled ; it obviously had no substance, and was raised merely to gain time and avoid execution, and, after hearing the objection, the Court awarded a further 87. 10s. es damages. This took place on Nov. 12, 1745, the very day, be it noted, that Fielding sent forth the second issue of his newly launched periodical, The True Patriot. The defendant, or rather his sureties, still

anxious to stave off the day of reckoning, on Nov. 19 entered an appeal from the Ex- chequer Court to the Exchequer Chamber by a " writ of Error." On June 4, 1746, the Chamber heard the appeal, and, " after due consideration," ordered

" that the judgment should be hi all things affirmed and should stand in full force and effect notwithstanding the said causes and matters assigned for Error by Arthur Collier. And it was also at the same time considered by the Court that Tristram Walton should recover against Arthur Collier eleven pounds and eleven shillings for his damages costs and charges which he had sustained by reason of the delay of execution of the said judgment on pretence of prosecuting the said Writ of Error."

Fielding's abilities as a lawyer will be perhaps questioned in his permitting Collier to be beaten all along the line, but in truth Fielding, who acted the dual part of pleader and surety, was making a desperate effort to save himself. He became liable by the judgment pronounced against Collier, and there are two pieces of cogent evidence that he was made answerable under it.

First, the adverse judgment rang the death-knell of The True Patriot, which terminated its run with the issue of June 17, 1746.

The second piece of evidence is more direct, for it rests on the authority of Fielding himself. In the above-mentioned letter from Lisbon one of the omitted passages, which, failing the explanatory particulars now forthcoming in the case of Walton v. Collier, was of necessity obscure,, related to Miss Margaret Collier and her designs on the gentleman whom I have identified as Dr. John Williamson, F.R.S., chaplain to the British Factory (11 S. xi. 251). Fielding objected to her proceedings, as well as her interference with his plans,, and refers bitterly to the

" obligations her family have to me, who had an execution taken out against me for 400Z. for which I became bail for her brother."

The following notes are germane : 1. At the end of July, 1745, the Pretender landed in Scotland ; by November he reached Carlisle, intending to march on London. No man was more active in rousing his fellow- countrymen to a sense of their danger and of their duties than Fielding. To this end he published an important brochure, ' Serious Address ' (never yet reprinted in his Works), and launched The True Patriot and the History of Our Own Times on Nov. 5, 1745, which was issued each Tuesday until it came to an end on June 17, 1746, in conse- quence, as is here suggested, of the result of the litigation in Walton v. Collier.