Part 2
It was, however, agreed at this meeting, that Mr. Ellis should buy five fields of wheat straw, there being none in the farm upon which he had entered, which was to be paid for at Michaelmas, 1819; and as the straw was required in part for thatching the stacks of the season, Mr. Elsee, being anxious to accommodate the new tenant, agreed to commence thrashing as soon as the harvest was got in. All matters were to be left to the arbitrators, as Mr. Elsee supposed, in a friendly way; and the new tenant having agreed, on the proposition of Mr. Driver, to take the stack of hay previously reserved for the crown, Mr. Peake’s clerk, to prevent any misunderstanding, drew up the following.
Memorandum.
Mr. Elsee 9 3 11 proposes to carry the corn (wheat) from the two courses, No. 20 No. 23, 24, & 10 2 2 25 _Acres_ 20 1 13 And also No. 27, beans 14 3 18 _Acres_ 35 0 31
And to allow Mr. Ellis, an equivalent in good rotten dung, in lieu of the straw of the before mentioned, to be delivered upon the bean-field, No. 27, at the rate of so many cubic yards, to be ascertained after it is in a proper heap.
Mr. Ellis to purchase the straw of the following wheat crops, due allowance being made for the dung which must be brought in lieu of it, if removed from the farm by Mr. Elsee.
No. 8, Church plain 20 0 0 Brook field 22 3 0 Shed field 32 0 0 Lodge field 11 0 0 Ditto 16 3 22 _Acres_ 102 2 22
Mr. Ellis takes the green stack of hay which is now finished stacking this day, at the value as per agreement, (that was at the same price the crown paid Mr. Elsee.)
The crops of corn to be thrashed out by Mr. Elsee, by the 25th of March; and he to commence and continue thrashing immediately after harvest, and the straw to be bound if required, at the expence of Mr. Ellis.
Mr. Ellis to have the liberty of taking away the thrashing machine by the 25th of May.
Mr. Elsee to have the use of one stable, and the barn for thrashing, and accommodation for the carman, and the present tenant and family in the house, until Lady-day.
Mr. Elsee to have the barn field until Christmas next.
The dung to be valued by measure.
Mr. Elsee to pay all rent, taxes, and outgoings up to Michaelmas.
As soon as the beans are off any field, Mr. Ellis is to enter if he pleases to broadshare, and Mr. Elsee to put his stock upon it.
The chaff to be divided equally between Mr. Elsee and Mr. Ellis.
R. Peake and E. Driver to value all the above, and if they should disagree, Mr. Edward Mee to decide between them; and the two former to meet within one month, to ascertain the quantity of straw, and the value thereof to be fixed, and paid for at Michaelmas next.
Signed, JOHN ELSEE. JAMES ELLIS.
Witness, R. DAVIS.
This agreement, of course, was not made in the most distant intention of invalidating the original agreement with the commissioners, nor could it legally have any such effect, the commissioners not being in any way parties to it; yet such an effect was produced by the arbitrators, to the serious injury of Mr. Elsee; _for they left him to seek payment from the new tenant for the hay_, _fixtures_, _&c. which it was stipulated should be deducted from the rent due to the crown_; _and the crown was made to demand in a most peremptory manner_, _the whole of an enormously unreasonable award in its favour_, _when Mr. Elsee_, _if he had been fairly dealt with_, _even according to the conditions of the agreement_, _which he had signed without any business to do so_, _would have been a_ creditor, _instead of a debtor of the crown_.
Upon the memorandum we have quoted, it is necessary to remark, that the two fields of wheat which was carried to Chigwell Row, contained only 18 acres tenant’s measure, and the whole produce was carried at 13 loads, with three horses. The weeds and rubbish of the bean field was four loads, _the bean crop having entirely failed_, making together 17 loads. Mr. Elsee took these crops for the straw, and proposed to bring back all the spit-dung in his yard at Chigwell Row, and lay it in a proper heap for measurement; and whatever excess of quantity there might be in reference to the wheat straw, was to be set off against the dung to be brought on account of the hay that might afterwards be carried from the farm. This was agreed to, and a place pointed out for its being brought to.
About a month from this date, the arbitrators met, and rode over the farm, to view the crops, and see the dung that had been carried. They measured one dung-hill, 75 feet long, 11 wide, and 3 deep. There was a second behind the hedge, but they were so very zealous in the discharge of their duty, and so very clever, _they thought it unnecessary to measure it_. They then proceeded to the 26 and 16 acre field, and looked at the dung and chalk rubbish which had been carried there; and went on to Havering to dinner. Neither on this occasion, nor on the 14th of July, did they attempt to go into any business, nor did they give Mr. Elsee any opportunity, as he had a _right to expect_, _of proving by several respectable farmers_, _who had long known the farm_, _the value of the respective crops in every field_; _and of the improvements that had been made_. It was impossible to arrive at any just conclusion, _without giving Mr. Elsee an opportunity of stating his own claims_, _and of knowing the nature and extent of the claims preferred against him_, _on many points of which explanations would be necessary_. This reasonable expectation, however, was totally disappointed; and Mr. Elsee heard nothing from the parties who had thus assumed to themselves _the right of disposing of his property without enquiry_, until the 29th of September, _the time when Mr. Ellis was to have paid Mr. Elsee for what he bought_; but instead of receiving his money from Mr. Ellis, he only received information _that the time for the settlement of matters between the commissioners and himself had been extended for a month_.
In the mean time, Mr. Ellis had completed nothing on his part of the agreement; _but he had taken away a large quantity of bean straw_, _sent his teams and people to take possession of __the farm_, _pitched his hurdles_, _and put his large flocks of sheep into the barn mead_, _and continued to fold them in the very field which he had agreed_ Mr. Elsee _should hold possession of till Christmas_, _and for which the new tenant was to receive half the wheat chaff_. Mr. Ellis kept continually fetching the straw, hay, and chaff, _though it had not been appraised_, and his taking possession of the field which Mr. Elsee should have had until Christmas, drove the cattle of the latter _into the stable_, _and they consumed the oat and bean straw_, _chaff_, _&c._ In this situation of affairs, and _the new tenant being a total stranger to Mr. Elsee_, he wrote to his attorney to ascertain in which way he should act, _as the agreement seemed null and void_, _or held in defiance by the other party_, _and as much neglected by the referees_.
While in such suspense, in the _November_ ensuing, without any more communication with the arbitrators, or any acquaintance with their proceedings, except that Mr. Driver and Mr. Peake could not agree, Mr. Elsee received an award to pay to the crown the enormous sum of £2066: 3_s._: 10½_l._ without any allowance whatever, and without any reference to the credit side of Mr. Elsee’s account. We subjoin the award, that the document may assist the commentary.
To all to whom these presents shall come,
I the within named Edward Mee, sending greeting, Whereas the within named Edward Driver, and Robert Peake could not agree upon the premises within referred to them, and make their determination in regard thereto in writing under their hands, on or before the first day of September now last past, so that it devolves upon me, the within named Edward Mee, as umpire within mentioned, as appears by a memorandum in writing, made and written at the foot of the within agreement or submission, and signed by the said Edward, Driver and Robert Peake, NOW KNOW YE, that I, the within named Edward Mee, having taken upon myself the burden of the said umpirage, and having duly weighed, considered, and examined the several matters and things so in difference, and agreed to be referred as with to mentioned. DO, by this my award, umpirage, and final determination in writing, between the parties in difference, of and concerning the premises within agreed to be referred, award and determine in manner and form following, that is to say. That the within named John Elsee do at the office of Messrs. Jones and Green, between the hours of ten and twelve o’clock in the forenoon, on Monday, the 29th day of November next ensuing, pay, or cause to be paid, unto the within named William Huskisson, William Dacre Adams, and Henry Dawkins, or the commissioners for the time being of his Majesty’s woods, forests, and land revenues, the sum of 1,888_l._ 9_s._ 10½_d._ of lawful money of Great Britain, in full of all claims and demands of them the said commissioners, on behalf of his Majesty, or otherwise howsoever against the said John Elsee, his executors, or administrators, of or touching, or in any manner whatever concerning, or having relation to the matters in difference, and agreed to be referred as within particularly mentioned, save and except that the said John Elsee, his executors, administrators, and assigns, shall and will bring back and lay upon the farm and land stated and referred to in the within written agreement, or submission, in a husbandlike manner, two cart load of good rotten dung, or an equivalent proportion of other equally good manure, for every load of hay which has been, or may at any time hereafter be carried off and from the said farm and lands as aforesaid, from the 15th day of February last past, by the said John Elsee, his executors, administrators, or assigns, without claiming, or requiring any compensation for the same.
I, the said Edward Mee, having had due regard to, and having made just allowance for any permanent benefit, which may have been done by him to the estate, by laying down any of the arable land, and converting the same into meadow or grass land. AND I do further award, and determine that the said John Elsee, his executors, or administrators, do at the same time and place aforesaid, pay, or cause to be paid unto the said William Huskisson, William Dacre Adams, and Henry Dawkins, or the commissioners for the time being of his said Majesty’s woods, forests, and land revenues, the sum of 177_l._ 14_s._ of like lawful money, as the said John Elsee’s proportion, or moiety, of all and singular the costs of the ejectment, and of preparing the within mentioned agreement, expences, costs, charges, and expences, as well of the said Edward Driver, and Robert Peake, as of me, the said Edward Mee,
In witness whereof, I the said Edward Mee have hereunto set my hand, this 30th day of October, 1819.
Signed, EDWARD MEE.
Witness, THOMAS BRACE, Surrey-street, Strand.
THOMAS SELBY, jun. same place.
Such an award as this, when Mr. Elsee _expected to receive_, _rather than to pay_, it will be allowed was enough to startle any man; and we do not doubt of convincing every unprejudiced reader, that more atrocious injustice was never perpetrated under the form of legal proceedings.
In the first place, the umpire says, “_he has __duly weighed and considered the matters in difference_.” To this the short answer is, that _he did not_; and for as short a reason, viz. that _he could not have duly considered the matter_, _without an examination of witnesses_, _and an enquiry into facts_, _which were never made_, _either by the arbitrators_, _or by himself_. It does not appear, that the umpire ever made any proper survey, nor that he ever in any mode acquainted Mr. Elsee with any part of his proceedings; and yet he asserts that he had _duly considered everything_! He cannot even pretend that he gathered his information from the arbitrators, which he had no business to take, if they had been ever so well qualified to give; _but the arbitrators had been equally regardless of their duty_; they had done nothing themselves, but left every thing in confusion, and could only tell Mr. Mee that _there was a difference between them in the slovenly estimate they had made_. This difference it was the duty of the umpire to have settled by a proper enquiry, _which the umpire did not make_, and therefore he did not _duly_ consider the case.
Mr. Mee also says that he has made _just allowance_ for the _improvements_, _&c._ of _Mr. Elsee_. We shall presently _shew_ that he has _not_ made _any_ allowance; but, on the contrary, that he has enormously overcharged Mr. Elsee in the matter of rent, and made no deduction whatever. Besides, we submit, that the umpire ought to have set forth the articles that he estimated, and their amount; the rent at which he valued the land; and every other particular as fully as he sets forth the dung which was to be brought by Mr. Elsee. If the umpire had ventured to do this, _if he could have done it_, his _award_ must have looked so palpably preposterous, that an ideot might have been ashamed of it. The only explanation we can offer of the affair is, the supposition that the umpire, instead of examining into the difference between the arbitrators, took Mr. Driver’s word, and made up this precious award under his direction.
The rent that Mr. Elsee would have had to pay the executors of Miss Ladbrook, at 375_l._ per annum, deducting the land-tax at 40_l._ 4_s._ in two years and a half would have amounted to 937_l._ 10_s._ This was all that was due to the crown, according to the _usual mode_ of dealing with crown tenants; and in the case of Masterman before quoted, the commissioners did not charge him even the rent he had paid under his own lease, but merely the rent paid by his landlord under the old lease.
The case then stood as follows:—
Mr. Elsee was £937 10 0 indebted to the crown And Mr. Elsee had the following claims, under the agreement which he had been entrapped to sign. A new shed £50 0 0 over the thrashing machine, made of oak from the Chigwell Row estate, and which Mr. Driver requested might be left New brick 150 0 0 brew-house, copper, oven, &c. Paid for 20 0 0 enclosing the waste at Romford Paid for the 48 0 0 crown towards the new market-house, Romford Carried £268 0 0 forward _Brought_ £937 10 0 forward, Mr. Elsee, Dr. _Brought_ £268 0 0 forward, Mr. Elsee, Cr. Laying down 360 0 0 to grass 120 acres _of ploughed_ land, as by the agreement Stack of hay 175 0 0 chosen by Mr. Driver for the crown, and sold by Mr. Driver to Mr. Ellis Fixtures 30 0 0 valued by Mr. Driver Land-tax {47} 97 8 0 paid by Mr. Elsee 930 8 0 Balance in £7 2 0 favor of the crown
This account leaves a balance of _seven pounds_ against Mr. Elsee; and yet the arbitrator makes him debtor, costs included, in _more than two thousand pounds_, and that too after professing to have made _due allowance_ for the admitted claims of Mr. Elsee!!! who did not in any fair view of the question owe 10_l._ and with the additional expence of endeavouring to obtain something resembling justice against this award, Mr. Elsee has been a loser of near _four thousand pounds_! _where he did not owe in justice even ten pounds_.
The first questions that arise are, how this sum could be made out?—upon what grounds the arbitrators could have proceeded?—and what _could be_ the _basis_ of the calculation?—We have before seen that Mr. Driver estimated the _whole produce_ of 108 acres of some of the best land on the farm, _at only ten shillings per acre_. This was about the rent paid by Mr. Elsee to Miss Ladbrook; and this serves to prove, that _even in Mr. Driver’s opinion_, the land was then let at its full value; and indeed the rent was fixed by valuation by parties for Miss Ladbrook, at a period when hay was at from 6_l._ to 8_l._ a load, and was therefore a rack rent in every sense of the word.
But if the rent were _doubled_, and the fair allowance made, the sum due to the crown would have been only 945_l._ instead of nearly _two thousand_! And surely the _doubling of the rack rent might have satisfied the consciences of any arbitrators and umpires_. But no—it is only by supposing that _this rack rent was trebled_—_that land the produce of which was only valued at ten shillings an acre_, _was charged a rent of thirty shillings an acre_—we can arrive at something like the calculation of the umpire! Is not this _a most wretched mockery of arbitration_? It would be difficult to find any words to characterise it, and it shall be left to the reader, as it is.
The _costs_, perhaps, merit a word or two. In order to colour the _modest charge_ of _three hundred and fifty-five pounds_, _eight shillings_, for _two rides over a farm_, _measuring one dung-heap_, _and looking at another_, by Messrs. Driver. and Peake, (what _trouble_ Mr. Mee took _not being in evidence_) the costs are said to include _the expences of the ejectment which had been so wantonly and unnecessarily incurred_, _and with which Mr. Elsee had nothing to do_. Besides, as the crown neither pays nor receives costs, _by what right did Mr. Mee pretend to assess them_? How came they into his umpirage?—We should like to see how they were carried to the credit of the crown. The expence of the agreement may be admitted, but the odd 55_l._ 8_s._ would have been an exhorbitant charge for it; so that we shall have the remaining 300_l._ to divide amongst the parties _for not doing their duty_! We have heard of such matters, as making up a sum for the sake of the _per centage_, but we make no such charge; we are not conjurers enough to define motives—but we repeat, that either from _sheer ignorance and gross neglect_, or _a wilful disregard_ of the interests of Mr. Elsee, he has been injured to the amount of _several thousands_.
Another circumstance occasioned Mr. Elsee to be still more astonished at the award; and that was, _he had heard_ Mr. Mee _declare some years before_, _and when hay was selling at_ 6_l._ _and_ 8_l._ _per load_, _instead of from_ 2_l._ _to_ 4_l._ _the price when the award was made_, _that he would not work such a farm as_ Mr. Elsee’s, _if he could have it rent free_! Yet being umpire, he could _treble the rent_, _when produce was lowered one half_, _and rents were being lowered by every landlord in the country_.
On receiving the award, Mr. Elsee waited on Mr. Driver, to remonstrate, but the Surveyor refused to interfere, as Mr. Mee had made his award; although he admitted that the land-tax had not been credited to Mr. Elsee, which circumstance alone called for a second reference to the umpire, but the Surveyor evaded the question, and could not be induced even to pay back this sum, which is too clearly due to Mr. Elsee to admit of any dispute.
Mr. Elsee also pointed out to Mr. Driver, that no credit was given him for the dung he had already carted on to the farm; to which Mr. Driver replied, _he supposed_ it was left to set off against the wheat straw which had been carried away; and being told that there was an excess of 130 ton over what was necessary in return for the wheat straw, he _very significantly remarked_, _that the umpire had a different way of estimating dung to what he had ever seen before_; as he called 40 feet of spit dung a load, while he (the Surveyor) had never heard of a load being more than 27 feet. Mr. Elsee reminded him, the weight of dung, or the load, depended upon the weight of the hay or straw carried off; that if one horse was sent to market with 36 trusses of straw, which weighed 11 _cwt._ 2 _qrs._ 8 _lb._ then 16 feet of good spit dung, weighing 12 _cwt._ would be an equivalent load; and that if 54 trusses weighing 17 _cwt._ 1 _qr._ 12 _lb._ were taken away, 24 feet of dung, weighing 18 _cwt._ would be an equivalent, and the same for a load of hay. Or if 108 trusses of straw, or one ton of hay, were carried, 27 feet of spit dung was the fair return, as bringing back _weight for weight_ was all that could in justice be required, by any landlord, while not one in a hundred obtained anything like so much. To all this Mr. Driver could make no sort of reply, and Mr. Elsee left him, after censuring the conduct of the arbitrators, who, _after charging so much for their trouble_, had settled nothing, not even making a list of the fixtures, nor measuring the hay, nor crediting the amount of dung carried, nor giving him any opportunity of stating his own case.
The award did not even state _the quantity of dung that remained to be brought_, or it would have been carted at once, being quite ready for that purpose. Mr. Elsee was therefore at a loss how to act, and imagined the only way left for him was to carry the hay, and let the quantity of dung to be brought in return, be assessed by a sheriff’s jury, before which he might prove the circumstances of the case;—but the servants of the crown are not to be bound by the ordinary forms of law. They have more effective instruments in their hands, and instead of being called before a sheriff’s jury, Mr. Elsee was served with an exchequer process by no less a personage than his Majesty’s attorney general; and an office copy of the process cost _eighteen pounds_! in which it was set forth a dozen times over, that he had taken from Havering Park farm 300 loads of hay, and had not brought back 600 loads of dung, for which the crown laid its damages at _six hundred pounds_.
The consideration of this proceeding carries us back to another part of the conduct of the arbitrators and the umpire, namely the agreement with Mr. Ellis. In this instance, there could hardly have been any occasion for an _umpire_. There _was but little to do_, _and of the commonest description of the business of valuation_, _and part of the business_, _as the valuation of the fixtures_, _and the stack of hay_, _was settled_; but these arbitrators _were determined to have things done regularly_, and as Mr. Mee had been made umpire in the other affair, he _was also made umpire in this business_, _and made his award one month after the time that Mr. Elsee ought to have been paid for the property_. As there are some remarks to be made upon this document, it is inserted.
Inventory of Valuation,
Made this 29th of October, 1819, by me, the undersigned, being appointed by Mr. John Elsee and Mr. James Ellis, under an agreement dated the 14th day of July last, as umpire between Mr. Edward Driver, of New Bridge Street, Blackfriars, London, and Mr. Robert Peake, of Waltham Abbey, Essex, who had been appointed by Mr. Elsee as out-going tenant, and Mr. James Ellis as in-coming tenant, on a farm called Havering Park farm, at Havering, in Essex, to value the following property, viz.