The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1836-08-23 00:00:00

LIVERPOOL ASSIZES,

NISI PRINTS.—FetnAr.
.(Before Mr. Justice COLERIDGE.)
.CLAYTuN ii. GREGSON.--,SPECIAL JURY CAUSE.
This important cause upon which the, payment of immense
sums depended, came on by appointment to-day.
Sir John Campbell the Attorney-General, (wh' with Sir F.
Pollock, was specially retained, each receiving fees of • 400
guineas), Mr. Coltman, and Mr. Cowling appeared for the
plaintiff, and Sir F. Pollock, Mr. Wightman, and Mr. Joseph ,
Addiion for the defence. t
This was an action brought by the plaintiff, Sir IR. C,,ay-
ton, for £22,000 damages for the non-working, according to a
covenant entered into between the plaintiff and defendant, of
certain coal mines, situated at Blackrod: and Adlingten, near r
Wigan, in this county, and for the defendant allowing one, of
the mines (the Blackrod) by non-working to become drowned,.
whereby tit the expiration of the,lease, under which the defend-
ant
held it, it was not possible to let the same.
The ATTORNEY-GENERAL opened the pleaLling,s. He had,
the honour to appear before the jury as counsel for the plains
tiff, Sir Robert Clayton, a gentleman now in his,9oth year, who
sought iu .this action to recover a very large sum of money
which he claimed to be due to him. :,111.e. nominal defeudant
was Mr. Gregson, &gentleman residing at Lancaster; the teAl
defendant was the Earl of Balcarres, a nobleman of great poS-
sessions in Scotland and in England, of a very ancient family
of high honour. The cause arose out of a mining lease that
was granted in the year 1807. The property in, question was
situated near Wigan, and consisted of a house and a mill, and
very valuable seams of coal. The colliery went by the name of
the Waterhouse colliery. The property -had long been in the
family of the Claytous. It belonged to Sir Richard Clayton,
who was Chief Justice in the Court of Common Pleas in ,Ire-
land, and had gone this circuit; one of the distinguiihed men
of the northern circuit, which had long been eminent ler the
legal: dignitaries it bad sent forth. Chief Justice Clayton
having no children himself, and having four nephews, Richard,
Robert, William and John, by deeds in his will, left the pro-
perty to Richard, the eldest son, for life,, to render to his issue
scale, if he had any, from thence, failing, to render to ,Robert
and nis heirs male and so on to William and John; the four
nephews having the estate for life and no longer, and if they
had sons they to inherit it. Ia 1802 the property in question,
situated in Adlington and Blackrod, was let on a lease to the
present defendant and two others. There was a long negotia-
tion between the parties, and the lease was not executed till the
year.lBo7. Under the surface where this mine was situated,
werelotir beds of coal, which were let by this lease, and also
the dwelling, which is of small importance, in the township of
Adlington. Adlington was divided from Illackrod by the River
Douglas. The uppermost vein of coal was called the yard
coal,-then came the second vein, called the bone coal, then the
five feet coal, and lower down the Harley mine coal. These
four veins were let by this lease for 27 years, from the 30th of
December, 1806, tb the 30th of December, 1813. when the lease
would expire. The scheme of the lease was that the lessees
were to pay £5OO a-year. for all the veins. They were then to,
pay according to the quantities of coal they got from the four
beds; which were estimated at different rates according
to their quality. The yard coal was estimated at I.:120
the Cheshire acre, that is, eight yards to the perch ; £l2O
the -bone coal ; 1:160 the five feet coal, and £220 the
Harley mine, and they were to pay to the lessees ac-
cording to these rates if they did not get in any one year as
much coal as amounted to £5OO. To have au allowance for it
in succeeding years if they exceeded this rate. The state of the
Clayton family was, Sir Richard Clayton was married many
years, having a daughter, but no sou. There was no hope,
therefore, that the remainder of his issue male would take effect.
Robert was married, but had no children. William never was
married. John, the fourth son, wasa clergyman, living in Dor-
che4ter ; he was married, hut had no children. There was,
therefure, no expectation of any issue male to inherit. It was
of great importance to these lessors that all joined in the lease
to obtain as much as possible out of the mines; fur though Sir
Richard was entitled to receive the rents, yet the brothers looked
at what was to take place on his decease, and it was of conside-
rable importance to them that a great quantity of coal should
be got out during the lease, for they were only tenants for life.
They were empowered to let the mines on any terms, so that
the whole of the coal under the surface should be taken before
the lease expired. Under these circumstances, as a covenant
wasintroduced into the lease wherein it was stipulated that
before the 31st of December, 1832, the year before the expiration
of the lease, the lessees should get a certain quantity of coal out
of tire mine, and that, if they did not get it, they should pay for
it, gotten or not go:ten. And the stipulated rate was at so much
per acre for each mine, as above stated; so that when the 31st
of December, 1832, arrived, the lessor then might be entitled
whiCh ever of the brothers was lessor, to be paid the full value
of the coal according to those rates of all that remained ungotten
within the limits that were prescribed. He should *mention that
the 'Earl of Balcarres's property was close adjoining, and there
was a covenant in the lease whereby the lessees were forbidden
to be concerned in any coal works in the neighbourhood, because
it 'might have a tendencylo make them neglect the Clayton
mines. The Earl of Balcarres had mines closely adjoining at

Adlington and Blackrod, which were chiefly managed by a
gentleman of very great intelligence, Mr. Halliburton ; and
from the name he bore he hoped nothing could be imputed to
him which was inconsistent with honour. At the same time he
certainly seemed to have devoted himself to the interest of his
employers, and.had been carried away by that laudable zeal to
enter into 4 scheme from which, he thought, but for that zeal,
he would have abstained. In the year 1814 he bought from Sir
Richard Clayton the reversion of the mines in Blackrod, both
of the surface and of the mineral. Sir Richard Clayton was,an
easy, Careless, and, he was afraid, rather dissipated man, neg-
lected his affairs, and resided at Nantz from 1816 to 1828. Mr.
Halliburton gave a very small sum for this, which was repaid
him by the surface rent. In 1814 Mr. Halliburton conveyed
this' reversion to the Earl of Balcarres. In this state of affairs,
the'Earl of Balcarres being the reversioner of the mines, it was
thotight a very convenient thing that he should also be the as-
signee to the lease. Accordingly, in 1818, he or his agent pre-
vailed on the lessee to assign the lease to the Earl of Balcarres,
who was. now in the shoesof the original lessee. His situation as
assignee to the family, and owner of the reversion at the time
that there was hardly any possibility or probability of there
being any heir to any of the brothers, made him certain on the
death of this fourth childless old man, which could not probably
be long protracted, to beelime the owner of the tee simple of the
mines in Blackrod, and all the coal that remained in .131ackrod
ungotten for the sum which he p yid to Mr. Halliburton for it.
Under this scheme it became desirable that as little coal should
be got froin the Blackrod inine.as possible, but that the lessees
should work out the Adlington mine in preference, which had
not been so bought by Mr. Halliburton. In pursuance of this
plan in 1814 the engine was entirely withdrawn from winking
th`lo3lackrod mine. There was a covenant in the lease that
thetitshould be no intermission in the working of this mine.
Th.d4onsequence of stopping this engine w'as, that the mine was
droiytied, and in that state it was delivered up in 18.35. All the
coal in this mine would belong to the Earl of Balcarres on the
death of Sir Robert Clayton, who was now. in his 90th year.
This seemed a deep laid scheme by drowning the mine to pre-
veoLany other lessee taking it during the life of Sir Robert
Clayton, and thereby secure the whole to the Earl of Balcarres;
because it would take a very large sum to clear this mine, and
the interest of Sir Robert Clayton being only duringc, his life, it
wits so uncertain as not to make it worth his while; but on his
-death it would open a rich harvest to the Earl of Balcarres
without his having paid one shilling for it. Under these cir-
cumstances the action was brought to recover damages for the
breach of the various covenants of the lease. The Attorney-
General, then went seriatim through each covenant, showing
wherein each had- been broken and the amount of damage
claimed under each breach. Seven breaches were alleged.
The plaintiffs admitted one breach, and had paid £5,500 into
court. They claimed according to their estimate on the aggre-
gate of the various breaches the sum of £42,189 13s. ljd. ; as a
set off to which, they gave the defendants credit for rents, sets
off, and money paid into court, a sum of £20,018155., leaving a
balance of 1:22,070 18s. lie., which was the sum sought to be
recovered. The defendant would endeavour to show that the
balance due was only £1,984 2s. 6d., but he trusted he should
be' able to show that such was not the case. They might think
the sum of £22,000 a large sum fur the defendant: to have to
pay, but they would recollect that the Earl of Balcarres was
merely paving by a short anticipation,for an immense value of
coal for which he had paid nothing, and which eventually
would be his own.
The Attorney-General's opening occupied upwards of one
hour and a half in delivery.
The lease was then read at length, and occupied some time,
after which witnesses were examined to prove the state of the
mine, and the accuracy of the plans and maps submitted to the
jury.
About half-past throe o'clock one of the jurymen was taken
illy and the court was necessarily delayed. A surgeon was sent for,
who deposed to the court that the juryman was ins dangerous
state unless assisted by surgical aid, which he would not accede
to.
.The ATTORNEY-GENERAL proposed that either another .inry-
man should be sworn, or they should proceed with eleven jury-
men.
Sir F. POLLOCK objected to this. He would not accede to
either proposition, but should be very glad, as the cense must
evidently be postponed, to come to some arrangement if possible.
The surgeon, Mr. Andrew Anderton, then deposed that pro-
bably in half an hour the juryman would be fit to sit without
danger, as he had now consented to an operation.
His LoansHtr adjourned the court for half an hour, observ-
ing that he did not think he could compel a gentleman to serve
under .such circumstances, as this cause would probably last
until next night.
After some time bad elapsed, his LORDSHIP said he would
adjourn the. cause until next morning, which would give time
for the counsel, if they could accomplish it, to come to some
arrangement; or, if the gentleman of the jury should be well
enourogiltproceed, otherwise it must be adjourned
gh the sauce
,
to next circuit; fer h,e_ s h o_UicL.no t compel a yeatiernao-to
the jury box in a cause likely to occupy so much time as the
present, and under circumstances likely to injure his heath and
put his life in jeopardy.
A common jury was then impannelled, and everdict by con-
sent taken in the cause Wheeler e. Hunt, damages £123.155. 9d.,
costs 405.. after which it was found impracticable to get on any
.Cause from the absence of all parties concerned, counsel, attor-
neys, and witnesses having made a holyday of the opportunity
presented of the cause continuing for 'one day at least.
The court was then adjourned at half-past four.

SATURDAY.
CLAYTON BART. V. GREGSON.
This cause was resumed again this morning. The counsel
announced to his lordship that they had come to an arrange-
ment, and would consent to a withdrawal of a juror. A juror
was accordingly withdrawn, and the case ended.
MARTIN V. STOCK.
The Attorney-General appeared for the plaintiff, and Mr.
Cresswell for the defendant.
In this cause an arrangement was entered into to refer it.
DEMPSEY AND OTHERS V. GRINDROD.
Mr. Cresswell and Mr. Henderson appeared for the plaintiffs,
and Mr. Alexander and Mr. Wightnaan for the defendant.
la this cause the defendant's case 'was opened first.
The declaration stated that the plaintiffs sought to recover the
sum of £l6O for goods sold and delivered.
Mr. ALEXANDER said the plaintiffs were assignees of Messrs.
Thomas and Robert Pearson, who were timber merchants in
Liverpool, and became bankrupts in 1833. The defendant was
a_joiner and builder. at Radcliffe in this county. The defendant
Purchased a number of logs of timber, in 1833, for the pur-
Poses of building to the extent of LW. In July, about a month
afterwards the defendant sent his son down to Liverpool to
purchase inor
and paid
thee trmber. The son did so to the extent of £l6O.
The parties defendant £l6O down on the general account.
thethen:plainPtrictiteeeded to the races morning then holding. Next
giving directions called ors the defendant for the purpose of
account, to pay the eltapwing the timber, and paid £2O more on
warded to its destination, and the "wing. The timber was for-
some time, when a letter'wa_nd nothing further was heard for
(her ~..„.s.reyeived from an attorney for the
plaintiff, estate.
sum
or zlB7 fot gon is sold ann,i,,k bankrupts, demanding a
mediately stated what the
or
eZe;izreilda.t
iNiter.h9rindrod
reducin, the account te £2O or 1:30..
at. paid sums
zlVear then came from
the attorney, stating that the spin of
account of'al.leged by the de-
fendant to be paid, was paid on
coming due, and had nothing to do- With the bill
°I exchange
general account.
Mr. Grindrod came over, and fully explained the matter, and
the attorney for the assignees rested satisfied that the case' as

so till 1.836, three ears aftei.wiads, when they brought the pre-
sent proceedings or £lB9 Ida. Mr. Grindrud tendered the' £2O
or £W balaneedue, which conceived to be all that was due,
but it was refused ; he then gave instructions ,for. the action,
which was coininenced against him to be defended, rind paid the
£3O into court, and £5 more to•nieet any caspal charge which
mightbe,brought.. The question for the jury would be whe-
therior no the defendant had paid sufficient. With regard to
the money hating Been•paid for an' acceptance, the . bill of ex-
change was fiir £242, and the, amount paid ,was £l6O, and the
bill was not due until tOtiiteen cia's after this itiOney was al-
leged to lie paid on account. .1-le'should also bring' lOrwards a
letter.from the :banker where the bill was made payable, ad-,
dressing" the defendant, hoping that the aitidnril of the'bill,
£242; would be ready,, and, that the billwas due on such a date,
which letter was written immediately before the bill was.due,
"'consequently some time after the amountallege'd to be paid on
acConlitOf it.

Thomas Grindrod, son of the defendant, deposed to paying
the £l6O for the timber, and upwards of £2O f.ir the sawing.
The letter from the banker was read, sfating .that "your ad-
ceptai:ieg Kill be due on the 21st inst., when I hope you will be
!prepared withlhe
.cash.”
Crofile:taiiitied..Whin he Went. to the: seers ,he gave hig
pocket-bookto,4r-Pe mon woke car e.ort, „Eledi did pot desiret he
money he gave him to lie placed to the'cfedit'of the bill which
was cording due. He allowed the; bill to: come in preference to
taking, it up, in order, to same to get the
.bill to speak
for itself. He paid cash for the bill as soon as it came back.
Re-examined.—Mr. Holmes was present when he 'Old the
money to Mr. Pearson. . .
Mr. Holmes, surgeon, of Pilkington, near Radcliffe, deposed
to accompanying the last witness to Liverpool for the purpose
of. going with him to the races, and .to -having_ preyinusly
paid him £250 on account, fur building some houses for 'him.
He saw him, pay the money, and made a remark that it was
strange he did not receive a receipt. The last witness remarked
that he had paid Mr. Pearson many a hundred pounds without
a receipt. He (witness) said that was one way of 'doing business.
The acceptance was put in and read, which closed the case
for the defendant.
.Mr. CRESSWELL, for the plaintiff, said he should haie some
difficUlty in. surmounting the evidence of Mr. Holmes. As to
the rest, he:V.140,3 be should, easily show that it was Unworthy
of credit. He should show that it was the practice of Grindrod,
he having nu banker, to place money in the handS of Roberts
to meet the payments, and that this £l6O was gitien to Mr.
Pearson to be appropriated to this purpose. As to what
Grindrod sail, that he suffered the bill to conic back in order
to. get it with less trouble, was proof enough that his statement
altogether was fallacious. Had the invoice of the goods been
produced, giving credit for the £l6O, it would hLvJ put him out
of court; as it. was not, he concluded they never had paid it for
that purpose. He called witnesses to prove the above aNgations.
Mr. ALEXANDER, in reply, contended that the plaintitt'scase
was a Most disgraceful one. ~
His Lokositir summed up with much fullness.
The jury, after turning round in their box, gave a verdict for
the defeudant.

SHAW V. DALE,

Mr. Crompton appeared for the plaintiff, and Mr. Cowling
for the defenee.
The declaration stated the action to be brought for money
lent by the plaintiff to the defendant.
This was an action which was brought by Mr Shaw, rner-
chain; of this town, against Mrs. Dale, who kept the tavern at
Kirkdale, in 1533. Mrs. Dale was not able to pay a bill which
Mr. Phillip Finch Currie was employed by a third party to get
from her, and applied for time, which, on the guarantee of Mr.
Shaw, was granted to her. On the expiration of this time, Mr.
Currie called lon the guarantee for payment, and received the
money.. Mr, 'Shaw, three years having transpired, had been
obliged to tiring this action to obtain 'the £5O advanced by his
kitidne.ss•
gr. Phillip Finch Currie was called,_and proved the abOve
facts, which were not shaken by the crass-examination.
The jury, by the direction of his lordship, returned a verdict
for the plaintiff—DaMages £5O.

COSSACK V. 'DJCKINS.,

Mr. CROMPTON appeared for the plaintiff, and Mr. CRESS-
WELL for the defendant.
The declaration stated, that this was an action brought for
a tresspass against the defendant, for breaking into the dwel-
ling-house, and seizing the goods of the plaintiff.
The plaintiff was the widow of a ship-broker, and was left
with a family, and 'endeavoured to support herself by letting
lodgings, and the action was brought for a trespass under cover
of adi tress, when, in fact, there was no rent due. The plain-
tiff had given notice to the defendant that she was going to
remove, and two days previous to the quarter's rent being due,
was In the act of removing her goods-to-her new dwelling, when
the defendant sent bailiffs into her' house to distrain. Mrs.
Co-sack cdkreturning expressed surprise, and on looking at the
warrant found it dated the I3th of February, and that it was
issued f r lent alleged to be due on the face of it on the 15th.
She imu.e liately paid the amount, £8 155., and-brought this
action for trespass. The defendant was agent for a Mrs. Bur-
rows. On calling for the witnesses they were absent, and the
court waited for some time.
His LORDSHIP, said he must make an example ; this was
continually occuring. The jury must decide this cause, and if
the plaintiff 'wanted a new trial, the attorney, must pay the
costs. As the jury were about to find a verdict for the defend-'
ant, the witnesses appeared.
• Williarn..thicket depOsed to receiving a warrant of distress
frbm,,the defendant, Dicking, and to executing it. MrS. Cos-
sack was out at the time. 1 here were plenty Of, goods, some' of
which,.they were removing. Mrs. Cossack, on returning, said
the rent was not due, but immediately paid the demand.
he hand-writing of previous receipts was proved.
Mr. CRESSWEI.I., for the defence, thought the action might
.hay been spared, as his friends own witnesses had proved that
all the damage sustained, was paying the money two days be-
fore it would have had to have been paid. But he should show
that an agreement was entered into ty the plaintiff to pay the
rent in advance, on
,the first day of each quarter;*so-that in
effect, the defendant had a right to distrain any day after the
first day of the quarter, and this was only two days from the
and of
.the quarter.
The agreement was put in and .read, and its authenticity
proved by the attesting witness.
Mi. CROMPTON in reply, contended that it was Only specified
that thefii sr quarter should be paid in advance.
Ilia Lo nsutv said the jury should look at the injury, and give
reasonable damages. The verdict must go on the wording of
the agreement for the plaintiff.
The jury returned a verdict of Is. damages.
His LORDSHIP said he should 'not certify on the question
being put to him by Mr. Cresswell, which will entitle the plain-
tiff,to obtain costs, but should engrosss the back of one count as
not proved.