The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1848-08-22 00:00:00

COAL MINES.-ILLEGAL DISTRAINT.

TOPPING V. BRETHERTON.—This was an action to re-
cover damages from the defendant for having let to the
plaintiff a coal mfne to which he had no title, and also
for an illegal distraint. Mr. Baines and Mr. Crompton
were counsel for the plaintiff and Mr. Martin and Mr.
Crompton for the defendant.
Mr. CROMPTON opened the pleadings. Mr. BAINES
stated the case- The plaintiff is a coal master, residing
at Wigan : the defendant, Mr. B rtholomew Bretherton,
formerly an extensive coach proprietor, and land owner,
residing at Rainhill, in this county. The action was
brought to recover damages upon two grounds—first,
that the defendant let to the plaintiff a coal mine, con-
sisting of two closes, to one of which he had no right
whatever, in consequence of which the plaintiff had
suffered considerable loss. The second claim against the
defendant was for an illegal distress—he having seized for
rent and sold the property at considerably less than its
value. The distraint was for £62 10s., whereas at all
events rent to that amount was not due. The property
sold had cost the plaintiff about £350, and in consequence
of the manner in which the sale was conducted, it
only realised £52 17s. In September, 1845, the plain-
tiff took from the defendant a colliery under two closes
of land, one called the plantation close, and the
other the common close, at Ince-in-Mackcrfield,
near Wigan. The term was for five years, and the
rent to be £5O or £6O a-year, for both sums were
named, the payments to be quarterly on the Ist March, the
Ist June, Ist September, and the Ist December, the first
payment to become due and payable on the Ist Decem-
ber then next ensuing. There was also to be an addi-
tional rent of £6O per foot per Cheshire acre of eight
yards to the perch for every foot of coal raised. The sum
of £25 was to be paid down for half a year's rent in ad-
vance. The plaintiff entered upon the colliery and com-
menced to sink a pit in the plantation close, when he was
stopped by Mr. Walmsley, the lord of the manor, who
claimed the mine as his property. This occurred in Fe-
bruary, 1846, and in October following the distress was
made without any previous intimation having been given
to the plaintiff.
Evidence was then called to prove this statement, and
also that the coals under this plantation were worth, when
got, £936 2s. 6d., the profit on which would be £340, but
no evidence was produced to show that the title to the
coal was in the lord of the manor.

Mr. MARTIN, in addressing the Jury for the defendant,
contended that the allegation contained in the declara-
tion that the defendant had fraudulently, wickedly, and
deceitfully, let the Plantation Mine to the plaintiff, know-
ing that he had no title to it, was not made out, for to
that eay he believed himself entitled to the property.
As to the second claim—that for the illegal distraint—he
should put in the agreement he held in his hand, signed
by the plaintiff himself, in which he had given leave and
license to the defendant to sell the property.
Mr. BAINES said he would not unnecessarily take up
the time of the Court, but should like to have the agree-
ment proved.
Mr. Ward, solicitor to the defendant, was then called,
and he stated that the distraint was made on the 24th
October; that on the 27th the plaintiff called upon him
and said, if time was given to him he could nay his rent.
It was then agreed that a month's time should be given,
and in consequence the agreement was executed.
This was then put in.
Mr. BAINES said, after that he would give up the cause;
but it was right to state that the plaintiff bad never com-
municated to the gen-lema i who instructed him the ex-
istence of the agreement.
His LORDSHIP said he had made up his mind on the
subject, but did not wish to pronounce his opinion unless
it would put an end to the case.
Mr. BAINES said it was right to state that he had no
grounds whatever for any imputation on the character of
the defendant.

Mr. MARTIN said they would consent to withdraw a
juror, and would never ask the plaintiff for the costs, as
he understood he was a very poor man.
This course was adopted, all parties agreeing that no
further proceedings respecting the matter should be taken.