Part 3
All the straw, and half the chaff that arises from 196 acres of land, except the straw used for thatching, which is to be left when taken off the stacks.
The straw at a foddering price on the premises.
Three stacks of hay, in the stack yard, at a foddering price.
The fixtures in the house.
The straw to be bound by Mr. Elsee’s men, when thrashed, and to be paid for binding the customary price of one shilling per load, by Mr. Ellis, if he chooses to have it bound.
The above property is valued by me at the sum of Three Hundred and Eighty-four pounds, Eighteen shillings, ready money.
EDWARD MEE. South Hall, Raynham, Essex.
£384 18s. 0d.
To this decision there came appended, as if by afterthought, the annexed addition, _viz._
The dung is to be brought back for all other hay carried off, according to the agreement. {56}
EDWARD MEE, South Hall, Raynham, Essex.
And then came the subjoined bill of costs, duly made out in the name and on behalf of _the firm_.
Messrs. Ellis and Elsee,
To Messrs. Driver, Peake, and Mee.
1819.
Oct. 29, To valuation of property, as per 28 17 6 inventory, at 2½ per cent. each Stamp 15 6 £29 13 0
Half to be paid by each party.
This award, it will be seen by a reference to the original agreement, page 35 and 36, is founded on the principle of charging the hay and straw _at a foddering price_, a thing never contemplated by Mr. Elsee, and to which he would not have agreed under any circumstances, _but that the award was delayed until Mr. Ellis was in possession of the farm_, _and a great portion of the property_; and though he did for a long time refuse to take the money from Mr. Ellis, and insisted upon the crown’s paying him for what its Surveyor had bought, he was ultimately obliged to take what he could get from the new tenant. {57}
Upon this second award, we must say that _the umpire has a way of his own for other things as well as for estimating loads of dung_. He values the articles at 384_l._ 18_s._ This valuation may have been a _sort of off-hand guess_, as if it had been quite immaterial to Mr. Elsee what became of his property, as we have already stated that he was never consulted as to its disposal. But as we happen to know the items, we may afford the reader some means of judging of the nature of the award, by putting something like a fair value upon them.
The fixtures had been previously valued by 30 0 0 Mr. Driver for the crown, at 123 loads of hay, at 60_s._ 369 0 0 196 acres of straw, at their own estimate of 480 0 0 two load per acre, at 25_s._ per load Chaff 10 0 0 889 0 0 From which deduct the sum paid by Mr. Ellis 349 11 0 to Mr. Elsee by Mr. Drivers order, {59}. And we shall have a loss to Mr. Elsee of 539 9 0
The loss sustained in this transaction, in which Mr. Elsee embarked solely with a view of accommodating all parties, and of carrying into effect the wishes of the Commissioners, as expressed by their surveyor, _was upwards of five hundred pounds_; the sum which was ultimately paid him he did not receive for three years, _in consequence of the unauthorised transfer of the debt of the crown to Mr. Ellis_, _and which might have been lost altogether_, _if any misfortune had befallen the latter gentleman_; and these things, coupled with the order to pay down the enormous sum awarded to the commissioners, _render it impossible to conclude that Mr. Elsee has been justly dealt with_; _and there will neither be law_, _nor equity_, _left to boast of_, _if a revision of these proceedings cannot be obtained_, _against the influence of Mr. Driver_.
If any such circumstances had existed in an agreement between private subjects, there is no question but that both the awards would have been easily set aside; but with the crown for an antagonist, and the equity side of the exchequer for the scene of action, a contest was indeed desperate, in the face of the enmity of a leading agent of the powerful party; so that after Mr. Elsee had presented a memorial to the commissioners, who were _induced probably by some misrepresentations from going into the merits of the case_; and after having disputed the validity of the general award, on the trial of an information in the nature of an action for debt, filed upon it by the Attorney General, the result was what might be very naturally anticipated, from the conditions of the agreement which he had been entrapped to sign. He was compelled to pay the sum that had been awarded, and to bear the additional expence of his useless endeavour to protect his own interests. At this period the losses of Mr. Elsee amounted to _about three thousand pounds_, but he was destined to be a still greater sufferer. We have before mentioned that the Attorney General filed an exchequer process for certain dung, claimed under the agreement, instead of the more simple, cheap, and equitable mode of sending the matter for assessment to a sheriff’s jury. Now, though Mr. Elsee had no business to have signed such a document, he was of course bound by its conditions when he had done so, and was ready to comply with them, and to carry back two loads of dung for every load of hay, and one load of dung for every load of straw carried off.—The dung was ready for the purpose; and he only waited _to know what was to be brought_, _and to obtain credit for what he had carried_, _which he never had been able to do_.
The exchequer process terminated in a reference to Mr. Bolland, whose general reputation stands on high ground; but who appears in this instance _to have wanted that degree of practical knowledge_, _which was requisite to enable a referee to appreciate the value of the testimony given on both sides of the question_; and it is difficult to guess at the principles that governed the decision, except on the supposition _that Mr. Bolland is a better lawyer than he is a farmer_.
Mr. Elsee attended to prove that he had carried _a large quantity of dung_, which he estimated, and proved by his witnesses, left 130 ton to his credit, _after deducting the quantity in return for the wheat straw_. He then shewed by his _books_, in which the accounts of every day had been regularly entered, in a way that set all contradiction and suspicion at defiance, and by the production of the market tickets, that the gross amount of all the hay carried from the farm, amounted to 119 loads; and that the account stood as follows:—
All the hay and straw taken from the farm 107 2 0 consisted of 119 loads of hay, weighing 18 cwt. per load 47 loads of straw, at their estimation, 27 5 0 weighing 11 cwt. 2 qrs. 8 lb. per load 166 loads, or tons 134 7 0
This straw was carried corn and all to Chigwell Row, at 17 loads, with three horses, but called 47 one horse or nominal loads of 11 _cwt._ 2 _qrs._ 8 _lbs._ and the quantity of dung to be returned as under stated:—
47 one horse loads, at 11 cwt. 2 qrs. 8 lbs. 27 5 0 each 119 loads of hay, at 18 cwt. each 107 0 0 Add 119 loads to make two for one 107 0 0 The whole quantity of dung due, in tons 241 5 0
The dung admitted to have been carried, consisted of 143 tons, and therefore about 99 tons in addition would have balanced the account. The value of this dung, at 5_s._ per load was 25_l._ and at _this price any quantity could be obtained at Romford_, _as Mr. Elsee proved by various respectable witnesses_. Yet after this statement, can it be believed that Mr. Bolland should award Mr. Elsee to pay the sum of 336_l._ 16_s._ 6_d._ besides _all the expences of the witnesses on both sides_, and _half the expences of the reference_! To us, this is utterly unaccountable.
Such witnesses on the other side, as Mr. Driver and Mr. Mee, _had their previous conduct to justify_, if possible; and Mr. Driver, who on a former occasion had told Mr. Elsee that he had never heard of more than 27 feet to a load of dung, stated now, upon his oath before Mr. Bolland that _fifty-four feet of spit-dung was a load_, and that too as a set off against a nominal load, namely 36 trusses, weighing 11 _cwt._ while 54 feet of dung weigh 42 _cwt._
Mr. Mee, who was said by Mr. Driver to have a way of his own when be estimated 40 feet to a load, found it necessary to _alter_, but _not to mend his ways_; for not thinking Driver’s jump from 27 to 54 feet would make out the calculation on their side, _even far the one dung-hill which they did measure_, _but never cast up the contents at the time_, he finally came to the conclusion that _sixty feet of dung made a load_!—a piece of information, we are bold to say, that no farmer ever heard of before. {65}
The absurdity and contradiction of the evidence against Mr. Elsee were really preposterous. For instance, Mr. Mee measured six stacks of hay 168½ loads, 250 feet to the load; and Mr. Harding measured the same stacks at 256 loads, 216 feet to the load.
We have already disposed of this question, in page 52, where the principle of _weight for weight_ is clearly defined; and upon this plain principle, it is submitted, _Mr. Bolland ought to have decided_. It was mere nonsense to go into any enquiry as to what was a load; there must be a _determined standard between the things_, or otherwise the condition of the agreement was a _nullity_, and Mr. Mee and Mr. Driver might with equal justice have demanded _barge loads_, or even _ship loads_ of dung, in exchange for _cart loads_ of hay. The obvious intention of the condition is to secure weight for weight for the straw, and double the weight, or two loads for one of hay. When, therefore, the weight of the hay and straw was determined, the required quantity of dung was also determined, and it only remained to be ascertained how much had been carried, and what there was still to be brought; and making every allowance for Mr. Bolland’s want of agricultural information, it is odd that he could overlook so evident a rule of conduct.
Another point to be considered, is that Mr. Elsee _was not permitted to carry the dung so improperly awarded to be due_; but _he was compelled to pay in money_, at the rate of _twenty shillings per load_, when he could have bought it at _five_, and when, besides, he had it already _provided for the purpose_; and the basis of this price was the assertion that _it would cost_ 20_s._ _to fetch a three horse load from London_! Thus the quantity is first exaggerated beyond all reason, and against the evidence of the facts, and then the dung is refused, and a four-fold price demanded in its stead. {67}
The following extract is made from Mr. Elsee’s instructions to his attorney, when the reference was proceeding, and it is inserted to demonstrate that he was desirous of nothing but an equitable adjustment:
“Every thing depends upon proving the quantity of dung, over and above the small quantity of straw taken away, only 27 tons 13 cwt. 1 qr. 12 lbs, according to their estimation. And they take it landlord’s measure, 20 acres, instead of 18, and make 40 nominal loads, when in fact there were only 13. Let us only establish the quantity of dung, and then I will make the following proposal, as I have kept a sufficient quantity of dung always by me, on purpose to carry, whenever I knew how much would satisfy. Let them state the price of the dung per load, to be paid in money in one month, or the dung to be delivered in two months, double the weight of the hay taken a way, that is two loads for one, after allowing for what has been carried, and let me chose which I will do, and that will save all disputes about the value of the dung. Or if they like it better, I will state the price, and they shall chuse either money or dung.” {69}
In more distinct illustration of the losses of Mr. Elsee, we offer, from _indisputable documents_, _which are ready to be produced_, an abstract of the expences and proceeds, of the farm for the last year of his holding, and also an abstract of the expences consequent upon his signing the agreement prepared by Mr. Driver.
Proceeds of the whole £2606 15 0 farm Expences of cultivation, 1717 17 0 harvesting, &c. Paid Jones and Green 2066 3 10½ Three years interest on 72 0 0 the money for the hay, &c. sold to Mr. Ellis Mr. Driver’s charge for 35 7 0 oat and bean straw valued by mistake Articles that the crown 930 8 0 ought to have paid for 4821 15 10½ Deduct the proceeds 2606 15 0 And we have a LOSS of 2215 0 10½
Besides these losses, Mr. Elsee is a considerable loser by Mr. Mee’s valuing 94 acres of oat and bean straw, namely all the straw upon the farm, when no such thing was ever mentioned, or thought of, either by the new tenant or Mr. Elsee; as the wheat straw and the field are particularly mentioned in the memorandum made at the time, July 14, so that instead of making an allowance for dung upon 96 acres of wheat, at what they call a load, at 2 load to an acre, or 192 load of dung, they have deducted from the valuation of Mr. Elsee’s property 392 load of dung at 12_s._ per load, (as he has been informed) making 215_l._ 12_s._ but afterwards, when they found their mistake, and Mr. Driver and Mr. Mee were fearful that upon this and other points the award would be set aside, Mr. Driver became very cautious, and refused to interfere, saying it was all Mr. Mee’s doing, _and pretty doing it was_.
When Mr. Elsee applied to Mr. Ellis for the payment for some seed beans and land rolls, and the two stacks of hay sold him in September, he said he would pay for the things as valued by Mr. Mee. To this Mr. Elsee objected, and having found Mr. Mee in Romford Market, he told him in the presence of the new tenant that he had no right to mix the property of the crown and what had been sold to the new tenant together; and that as Mr. Ellis wanted to settle, and he wanted his money, if the umpire would look into his books, and say the value of the two hay-stacks, and the wheat straw, although valued ever so low, he would, according to his agreement, take the money, and settle with the new tenant, but that he had no right to mix the things to be paid for by the crown with the other property; and that as to the oat and bean straw, not one word had been mentioned about selling it, by any of the parties, as it was never intended to be sold, _that_ and the hay from the stacks at Windmill Hill being all the cattle had to live upon from Michaelmas to Lady-day; and that as to the award, he was confident it must be set aside, as the allowance for dung to which they had no claim amounted to more than the rent owing to them; and as he had agreed to enable Mr. Driver to fulfil his engagement with the new tenant, by furnishing him with dung for the ensuing crops, the arbitrators surely did not mean to make him pay over again in money. Mr. Mee appeared confused, _and refused to state the value of the hay and straw separately_. With respect to the oat and bean straw, when Mr. Driver found it was not intended to be sold, _he himself furnished Mr. Ellis with the amount_, _and ordered him to deduct it out of the sum to be paid_; _this Mr. Driver could do_, _independent of Mr. Mee_; _but the charge against_ Mr. Elsee _for the_ 188 _load of dung_, and the 7½ _per. cent. for making the charge unjustly_, _he entirely omitted to notice_!
The following additional particulars are to be taken into the account of the sum total of the loss sustained.
Mr. Elsee was obliged to allow for the 96 235 4 0 acres of wheat straw, sold to Mr. Ellis, no less than 392 load of dung, at 12s. per load For the hay to Mr. Ellis 123 load, at two 147 12 0 load for one, 246 load at 12s. per load For the 18 acres of wheat, taken to 50 0 0 Chigwell Row, at 13 load & 4 load of rubbish, Mr. Elsee delivered 200 dung cart load of good rotten dung and chalk, at 5_s._ per load For dung left in farm yard 100 0 0 For 119 load of hay sold, and about 6 load 284 2 0 of rubbish, tops and bottoms, taken away, Mr. Elsee paid in money by Mr. Bolland’s award Expence of award and crown witnesses 54 12 0 Mr. Elsee’s expences in the exchequer, and 320 0 0 the award Being a charge of £1191 10 0 for dung only.
Thus was Mr. Elsee, in one year, deprived of more than _three thousand pounds_, as the result of his anxious desire to oblige the Commissioners, and to accommodate the views of Mr. Driver. To this alone has this injustice—we had almost called it _robbery_—been owing. As a tenant at will, he would have been only liable to his customary rent; he could have carried off his crops, sold the dung, removed his fixtures, and left a worthless occupancy to the crown; but because he was anxious to accommodate himself to the best interests of all parties, _and incautiously put himself in the hands of_ Mr. Driver, he has been marked out for a series of wrongs and oppressions that are scarcely to be credited; but it is yet to be hoped that he may obtain redress. The _blame_ at present may rest only with the inferior agents of the crown, and the Commissioners have the means, nor shall we doubt of their disposition to do right; but if their servants can intercept the claim for justice, there is no step left but an appeal to the legislature to expose the wrong, and prove that the boast of _equal law_ is an idle mockery in England.
We shall now proceed to shew, from the quantity of meadow land, _that no such quantity of hay could have been grown_, _as that for which the dung was claimed_. This we shall do by inserting the following document, of the authenticity of which there can be no question, as it is a copy of the estimated quantity of the land, arable and meadow and pasture, made by Mr. Driver himself, and printed in the proposals for letting the farms, when they were taken by Mr. Ellis.
Particulars of Land from the letting Catalogue.
No. Names of the Fields. Arable. Mead & Pas. Land mown A. R. P. A. R. P. A. R. P. 1 House, homestead, &c. 2 3 1 2 Orchard 2 0 27 3 Plat 2 0 24 4 1 2 0 5 Barn field 13 0 5 12 0 0 6 Lodge field 16 3 32 7 Foreberry 21 3 0 20 0 0 8 Church plain 45 1 12 9 Ditto 0 3 32 10 Lower brook field 17 0 11 11 Ditto 6 3 33 6 0 0 12 Ditto 2 1 39 13 Bourn bridge mead 3 1 24 14 Ditto 13 3 19 12 0 0 15 Lower outer course 14 1 27 16 Lower inner ditto 10 0 4 17 Upper brook field 22 3 0 18 Lodge field ) in one 15 2 14 19 Shedfield hill ) in one 38 1 16 20 Middle inner field 9 3 11 21 Middle outer field 9 0 16 22 Upper ditto 6 3 32 23 Upper inner course 1 2 11 24 Upper inner course 3 3 22 25 Upper inner course 6 2 20 26 34 3 8 32 0 0 27 The twelve acres 14 3 18 28 Windmill Hill 10 2 10 29 Windmill Hill 11 1 19 30 8 0 26 31 Great sand hill 4 0 9 32 17 0 23 33 Little sand hill 9 1 1 34 Eighteen acres 20 0 18 35 Pound field 22 3 0 36 The twenty six acres 28 2 0 37 The new mead 16 2 34 14 0 0 38 The twenty acres 26 2 26 39 Williper hill 23 3 5 40 The fifty acres 46 1 3 44 0 0 The hoppet 3 0 0 392 1 13 192 2 22 143 0 0
The first column contains the quantify of arable, and the second of meadow and pasture land, estimated by landlord’s measure, that is including roads, ditches, &c. This also includes the homestead, farm-yard, &c. places which certainly could not be mowed for hay. In the third column is given the real quantity of land that was mowed, not including the _waste land_, and land newly laid down to grass.
Of the meadow laud, there were 143 acres, which was estimated by Mr. Elsee’s opponents themselves as producing 1¼ load per acre, and this would amount to about 178 loads. There were 81 acres, which was estimated to produce three quarters of a load per acre, and this amounts to about 60 loads. The waste land comprized about 56 acres, which was estimated at half a load an acre, making about 33 loads. Adding these together, we have a total of 271 loads, as the whole produce of the meadow land; and from this is to be deducted 123 loads which were valued to Mr. Ellis, and this leaves only 148 loads to be accounted for by Mr. Elsee. Of this quantity, as appears by his books he has sold 119 loads, the remaining 29 being eaten by his cattle on the premises. Nothing can be clearer than this detail, the facts and figures of which speak for themselves.