Transcribed from the 1826 Wooler edition by David Price, email
ccx074@pglaf.org
Statement of Facts,
ON THE
_INJURIOUS TREATMENT_
OF
J. ELSEE, ESQ.
_Late Tenant of a considerable Portion of Havering Park Farm_,
_in the Forest of Hainault_,
IN
CERTAIN TRANSACTIONS
WITH THE
Commissioners of Woods and Forests,
AND THEIR AGENTS.
* * * * *
_Compiled in support of_
A RENEWED MEMORIAL TO THE COMMISSIONERS,
AND
PETITIONS TO PARLIAMENT.
* * * * *
TO WHICH ARE ADDED
_NOTES_,
_In Illustration of the Gross Abuses of the Forest Laws_.
* * * * *
WOOLER, PRINTER, GOUGH SQUARE.
1826.
* * * * *
STATEMENT, &c.
THE statements which will be found in this pamphlet, will probably
startle the minds of most persons who may give them a perusal; reflecting
as they do upon the administration of justice, and the conduct of an
official board, which is invested with the power of transacting certain
business in the name of the crown, and on behalf of the nation. In such
cases, the highest degree of liberality might reasonably be expected.
Those petty interests that sow dissentions between individuals _ought
not_ to exist in transactions between individuals and the representatives
of the national authority; and, certainly, no _prejudiced motives_, or
_personal feeling_, should be permitted to operate to the prejudice of
the weaker party. Unfortunately, however, persons who ought to rise
infinitely superior to all paltry hostility, and mean jealousies, do not
always separate their prejudices from their duties; and they are also
often led by the nose by impertinent and interested servants, who, in
reality, become the masters of their nominal superiors, and dictators to
those whom it is their business to obey.
Much injustice is frequently occasioned in such manner; but after a
perusal of our narrative, we think we may fairly challenge the production
of any instance in which so much pecuniary injury has been sustained,
accompanied by so much outrage to the feelings of a respectable,
unoffending, and highly meritorious individual;—upon one, who, during a
long and active life, in public and private, has conducted himself in the
most exemplary manner; against whose reputation no one has ever dared to
point the finger of reproach, and who having gained a considerable
fortune by his own unaided exertions, the most persevering industry, and
the most scrupulous integrity in his dealings, had an undoubted right to
expect the protection of his interests by persons who were acting as
trustees for the nation; instead of being insulted, and entrapped into
legal difficulties by their agents, and plundered of a large sum of
money, without the slightest pretence for, or justice in, such an
outrageous attack upon the sacred right of private property.
And when, in addition to this, the reader shall reflect, that these
occurrences took place within a very few miles of the metropolis, and
were directed against an individual well-known and highly respected, both
in his own neighbourhood and the metropolis itself, the scene of his
prosperous exertions for so many years, the astonishment will be
proportionately encreased; for if the rapacity and insolence of the
servants of a public board can be audaciously exhibited towards an
individual so situated in life, what misery and ruin may they not have
entailed upon the poor and defenceless, who are prostrate at the feet of
such oppressors. Mr. Elsee, to whom our narrative relates, has
fortunately escaped the _total ruin_, with which he was unblushingly
threatened—but the sacrifices which he has been compelled to make, might
have _broken the hearts_, and _exhausted the means_, of hundreds who
would have thought themselves possessed of a competency for the wants of
a respectable subsistence. {8}
With these requisite preliminary observations, we shall proceed with our
narrative, premising also, that these pages are written in illustration
and support of _memorials to both the houses of parliament_, as well as
to the commissioners of woods and forests, for such redress as Mr. Elsee
has yet a just right to expect will be afforded to him, if the honest
attention of the principals in the latter office can be drawn to the
subject; for the agents of government can have no true or lasting
interest in the injury of any one of his majesty’s subjects; and the
liberal principles lately adopted by some of the most influential of his
majesty’s advisers, encourage a hope that their liberality may be
extended to the actual administration of impartial justice, and not be
confined to empty parliamentary professions.
Mr. John Elsee, at the period to which this narrative refers, was a
gentleman residing on his own freehold estate, at Chigwell Row. He had
been many years in business as a wholesale stationer, in Queen-hithe, in
the premises now occupied by the Lord Mayor, and this part of the city
became the market for paper by the exertions of Mr. Elsee. Having
realized a considerable property, he retired from business, and having
spent the earlier portion of his life in agricultural business, he
purchased a freehold in the neighbourhood before mentioned, and became
also the lessee of part of Havering Park farm. This farm, containing
altogether about 1000 acres, was held under the crown, by a lease granted
in the time of King William and Queen Mary, to John Hampden, and Thomas
Lovell, at a nominal rent; it afterwards became the property of the
Ladbrook family, and was divided into two farms, one being let by
Ladbrook to a Mr. Thomas Hall, and the other to Mr. Elsee, whose lease
expired in 1815, and he continued as _tenant at will_ to Miss Ladbrook,
three of the family which had granted his lease having died during its
continuance; and Miss Ladbrook told Mr. Elsee that she did not intend to
apply for a new lease. Mr. Elsee, therefore sent in a memorial in the
usual way, having been told at the office that Miss Ladbrook’s lease
would expire at Lady-day, 1818, _but to such memorial Mr. Elsee never
received any answer_; though _it had been the usual practise_, _for many
years_, _on the part of the commissioners of woods and forests_, _and
land revenues_, _to signify by printed papers_, _affixed in their public
offices_, _and in other ways to make it publically known_, _that if no
application was made __by the tenants holding under lease of the crown_,
_two years before the expiration of their old leases_, _to renew their
holding_, _the commissioners would consider themselves open to receive
proposals from any other persons_, _to treat for a lease or leases of
such premises_.
In the summer of 1817, Mr. Edward Driver, the surveyor to the land
revenue department, informed Mr. Elsee that he was not to pay any more
rent to Miss Ladbrook’s executors, that her lease had expired at Lady-day
_then last past_, and that in future the rent must be paid to the crown.
From this Mr. Elsee conceived the hope of obtaining the lease himself,
the more especially as Mr. William Masterman, _had been in a situation
precisely similar_, _on the expiration of his landlord’s lease_, and the
commissioners had granted him a new lease for 31 years, charging him for
the interval between the expiration of the old lease, and the day of his
entering upon the new one, _only the same rent which his former landlord
had paid to the crown_.
At this time, Mr. Driver said he was going to seize the other part of the
land comprized in the lease of Miss Ladbrook, and held by Mr. Hall, for
dilapidations. Mr. Driver subsequently _made this seizure_; and then
_requested Mr. Elsee to take Mr. Hall’s farm into his hands_, until the
final decision of the commissioners respecting the disposal of the land
was made known, it being then uncertain whether it would be let or sold.
Mr. Elsee declined this proposal, being every year a considerable loser
by the part he held, and only retaining it in the expectation of having
_his rent reduced_, and obtaining a lease _on such terms as might warrant
him in the outlay necessary to afford a prospect of an adequate return_;
and in the intention of becoming a purchaser, if the commissioners should
decide upon the sale of the land.
Besides this, Mr. Elsee felt that he had strong personal claims to fair
dealing, if not to liberal treatment, from the commissioners; as, at
their request, he had exerted himself in the protection of crown rights
in the forest, which were grossly infringed by their own servants. He
had assisted to detect and bring to justice the _under-keeper_, the
_king’s woodward_, and others, _for stealing timber from the forest_, a
practice then carried on to a great extent. {15}
Under all the circumstances, therefore, Mr. Elsee had a right to expect
something like _justice_, if not liberality, on the part of the
commissioners; and if he had been in their hands, instead of _the hands
of their servants_, he probably might have obtained it.
While in this state of suspense respecting a new lease, Mr. Driver
repeatedly informed Mr. Elsee, that he had received offers for the farm
previously occupied by Mr. Hall, at three times the rent which Mr. Elsee
considered it to be worth, and three times as much as it was afterwards
let for to a Mr. Ellis. This statement, whether true, or otherwise, had
the effect of preventing Mr. Elsee from making any further offers,
_particularly as his previous application for a lease remained
unanswered_; and he urged Mr. Driver to get the amount of the rent fixed
which he was to pay to the crown, for the time after the expiration of
Miss Ladbrook’s lease, _and to name any period when the crown wished to
take possession of the land_. Mr. Driver replied, that _if Mr. Elsee
would continue to hold the farm until Michaelmas_, 1819, (that was
another year) _he trusted that all would be settled by that period_, and
he would very shortly let Mr. Elsee know the amount of rent that he was
to pay, _but which was never done_.
Some time elapsed without an arrangement and from the harsh conduct of
Mr. Driver to Mr. Hall, and other crown tenants, when circumstances had
placed them in his power, Mr. Elsee became uneasy, and _wrote to request
positive information as to how_, _and when_, _he was to settle with the
crown_, _and surrender possession of the farm_. In answer to this
letter, Mr. Driver referred Mr. Elsee to Mr. Pillar, the chief clerk; and
on application to that gentleman, he said, _he was surprized that Mr.
Driver sent to him_, _as he did not think that the commissioners would
object to any arrangement that Mr. Driver might think proper to make_;
from which it may be inferred, that the affair was left entirely to that
gentleman, from whom, in a few days, Mr. Elsee received the following
letter.
New Bridge-street, Oct. 12, 1818.
Dear Sir,
I have been out of town the whole of last week, or I intended to have
written to you, on the subject of the farms at Havering. I now beg
to inform you the Commissioners have not come to any determination as
to the time of letting either of the farms, only they are to be let,
and not sold; and have desired me to obtain offers from any person
desirous of treating with me for a lease of either of the farms. I
shall therefore feel myself happy to receive in writing any proposal
that you may be disposed to make, and it shall be forwarded in the
proper way, in the same manner as some other offers already made will
be forwarded. I shall be prepared very shortly to make some
agreement with you, as to your present holding, and, for your
continuing until Michaelmas next, before which time I hope and trust
the whole of those farms will be disposed of in some way or other.
I am yours, most truly,
E. DRIVER.
The farms not being to be sold, as Mr. Elsee had been induced to hope
they would be, and the conditions in some printed particulars forwarded
to him by Mr. Driver, not appearing to leave room for any advantageous
holding under the crown, he declined making any proposals, and was only
anxious to get extricated as speedily as possible from the farm, _which
he had continued to hold at the earnest request of_ Mr. Driver, _and with
a view to facilitate any arrangements on the part of the crown_; _as
every day’s holding was injurious to_ Mr. Elsee, _when he ceased to have
the prospect of being either the purchaser or lessee_. {19}
The farms, however, were let before the Christmas of 1818; and Mr. Elsee
requested Mr. Driver to inform the gentleman who had taken them, and had
entered upon that of Hall, that Mr. Elsee was desirous of letting him
have possession of the other, and to sell him any thing upon the
premises, whenever it would suit him. Mr. Driver promised to communicate
this offer to the new tenant, and then, for the first time, said, “_he
had not yet done with Miss Ladbrook’s executors_; _that he meant to make
them pay_, _double the rent that Mr. Elsee had paid them_, _for the time
he had held the_ _farm_, _since her lease expired_, _as she had never
__given the crown possession of that part of the land_.”
Mr. Elsee thought it impossible the Surveyor could be in earnest, in such
a monstrous and ridiculous proposition; and replied, “_surely_, _you
obtained possession_, _when you entered on Hall’s part_; _for at the time
you surveyed Hall’s part of the farm_, _and took possession of that_,
_you also went over and surveyed the part held by me_; _and you know very
well that possession has been offered to you again and again_. _You have
also given me directions to get boards painted and fixed up at different
parts_, of both farms, _to warn people from sporting and shooting_, _and
you have afterwards paid me for these things_, _while I have done every
thing in my power to accommodate you_, _by staying on the farm at your
own particular request_.”
This reply should have been conclusive, for if the crown were not in
possession, the fault rested only with its own Surveyor. No wish to hold
over was entertained either by the executors, or by the tenant at will;
nor was there, in fact, any holding over, for Mr. Driver had taken actual
possession, had directed the rent to be paid to the crown, and acted as
the possessor of the property on behalf of the crown. It was therefore a
paltry quibble, and a meanness of which any landlord should have been
ashamed, to have taken advantage of a mere informality, if it had
existed, which however does not appear to have been the case, _as the
land had only been held at all at the Surveyor’s own particular request_.
Mr. Driver, however, for some purpose of his own, thought proper to
disregard the justice of the case, and replied that “Mr. Elsee was not
the tenant of the crown; that Miss Ladbrook’s executors had behaved very
ill; that there was no complaint whatever against Mr. Elsee, who could
come upon the executors for any injury that he might sustain; that he
(Mr. Driver) was determined to bring an action of ejectment against the
executors; that Mr. Elsee’s crops would be seized on the premises the
next summer, and that he might sue the executors for the damages.” {23}
Mr. Elsee, who saw in the consequent expence nothing but mischief to all
parties, except Mr. Driver, if the threat were really carried into
execution, waited upon the solicitors of the executors of Miss Ladbrook,
informed them what had passed, and begged them to see Mr. Driver, and
make an arrangement to prevent the seizure of the crops, and the
unpleasant results of such a litigation.—These respectable solicitors,
Messrs. Windus and Holtaway, were not to be frightened; they knew the man
they had to deal with, and after some severe remarks on the Surveyor’s
conduct, they declared that they would have nothing to say to him, that
they had never held over, and that he might do his worst.
With this answer Mr. Elsee returned to Mr. Driver, who had left word that
the report was to be made to Messrs. Jones and Green, the solicitors to
the office of woods and forests, to whom Mr. Elsee repaired, and _was
then informed by Mr. Jones that he did not_ think _the crown would
require more rent than had been paid to_ Miss Ladbrook; but that he would
see Mr. Pillar, and make enquiry at the office, and acquaint Mr. Elsee
with the result; which, by the bye, he never did.
The Surveyor proceeded as he had threatened he would, with his action of
ejectment; and during its progress, he forwarded a long agreement to Mr.
Elsee for his signature, the effect of which was to put him in the place
of the executors, when judgment should have been obtained against them,
and leave him entirely at the mercy of the crown. This agreement, too,
had been framed without any consultation with Mr. Elsee, upon its
conditions, some of which were contrary to the custom of farming leases,
and all of them framed in opposition to the situation and interest of a
_tenant __at will_, which the Surveyor had declared him to be, _and not
in any way a tenant of the crown_. This attempt to encrease the
responsibility of Mr. Elsee was answered, of course, by a refusal to sign
it; the agreement was returned, and Mr. Elsee waited upon the Surveyor,
and pointed out to him that he was not liable to _any conditions_, and
still less to the unreasonable ones attempted to be imposed upon him—that
there was no legal claim upon him for dung {25}—that he had paid for it
on his entrance upon the farm, and it would be his property when he
should give up possession. To this the Surveyor replied, _that he had
let the farm on such conditions_, _and the new tenant was to do the same
during his lease_. It was then enquired by _what right_ the Surveyor
made such conditions with respect to _this farm in particular_, since _he
had not made them with respect to Heaton’s_? The Surveyor made answer,
that they “_would be made to leave all their dung_,” which, however, _was
not the case_, for in the following summer the crops of that farm, and
_also the dung_, _were sold by the owner_. {26}
It was further remarked to the Surveyor in this conversation, that _spit
dung_ was specified, and that it was not always to be procured; to which
the Surveyor said it was so stated in all leases, meaning that, or an
equivalent in other manure. Mr. Elsee again insisted that the dung was
as much his property as the hay and corn; and further objected to the
expence of the agreement as _unnecessary_, as the Surveyor _knew_ he was
ready to quit the farm at any time. The Surveyor, notwithstanding all
this, held to his purpose, {27} and pretended that the thing must be done
_regularly_; that the whole of the expence would not be more than 60_l._
or 70_l._ that the crown would pay half, and would further give time from
Michaelmas 1819, to the following Lady-day, to thrash out the corn, and
otherwise dispose of the property to the best advantage—that the crown
besides would pay for all _improvements_, _laying down ploughed fields to
grass_, _&c._ In spite of these temptations Mr. Elsee refused to sign;
had he remained firm in this refusal, and acted upon the advice of his
friends, many of whom recommended him not to put himself in the power of
the Surveyor by his signature, he might have saved himself some thousands
of pounds, and a degree of personal and family anxiety even more to be
deplored than his pecuniary loss. {28}
In this time the Surveyor had proceeded in his action of ejectment, and
as the day for the service of the declaration approached, Mr. Elsee was
applied to for his final decision as _to signing the agreement_; and he
found himself compelled to submit, even as it was, with a reference to
arbitration as to terms, &c. or to close the doors upon all
reconciliation, and entail upon his property the disastrous consequences
of _a law-suit_, _with the crown for an antagonist_. {29}
In this dilemma, the agreement, in an unfortunate moment, _was signed_,
and the consequences proved still more mischievous than those which the
signing was intended to prevent; Mr. Elsee being soon plunged into the
legal embarrassments that it had been his earnest hope, and most anxious
desire to avoid, by the very act that involved him. {31}
The leading articles of this fatal agreement, were, that Mr. Elsee,
_against whom the action neither was_, _nor could have been brought_,
should sign a Warrant of Attorney in ejectment, _he_, _moreover_, _having
been throughout anxious to quit_; and for thus burthening himself with a
responsibility apparently attempted to be saddled on the executors of
Ladbrook, it was stipulated that he should have the land without rent
from Michaelmas, 1819, to Lady-day, 1820—to be paid for seed sown upon
not less than 40, nor more than 60 acres—to leave 60 load of hay, and all
the fixtures in the house—to be paid for laying down ploughed land to
grass, and his other improvements—to be accountable for dilapidations, if
any, since the termination of Ladbrook’s lease—and arbitrators to be
appointed to ascertain what rent should be paid for the 2½ years since
the expiration of the lease: and out of this sum the agreement set forth,
as under, the sums due to Mr. Elsee should be deducted, and allowed to
him.
“And the said W. Huskisson, W. Dacres Adams, and Henry Dawkins, do
hereby agree for and in behalf of his Majesty, to and with the said
John Elsee, his executors, and administrators, to submit to, and
abide by the decision and determination, so to be made as aforesaid,
and that whatever sum or sums of money shall be so as aforesaid
awarded to be paid by them to the said John Elsee, for the value of
the said fixtures, seeds, and the hay to be left as aforesaid, and as
a compensation for laying down any of the lands as aforesaid, shall
be allowed to be retained by him, his executors, administrators, and
assigns, out of any sum which shall be awarded to be paid by the said
John Elsee to them, for the use and occupation of the said premises,
or for any other of the matters aforesaid.”
Mr. Driver and Mr. R. Peake were the parties appointed as arbitrators, to
settle the matters at issue, the former acting for the crown, and the
latter for Mr. Elsee. On the 14th of July, 1819, they met, and rode over
the farm, and took an account of the house fixtures. They next went into
the stack-yard, and the Surveyor agreed to take for the crown, for the 60
load to be left by the agreement, a stack that the men were just
finishing, and the first made that season, the price to be fixed by the
arbitrators.
Mr. Elsee proceeded with these two gentlemen to Mr. Ellis, the new
tenant, and Mr. Elsee offered to give up the farm at that time, and to
sell the in-comer any thing upon it.—Mr. Ellis declined this offer, but
wished to treat for some fields, which lay convenient to those he had
entered upon. These were ten fields, containing 108 acres of unmowed
grass, with the use of 17 acres of fallow in addition. The two
arbitrators were to fix the value, and they left the room for that
purpose, but returned without agreeing, as Mr. Driver would allow the
fields _to be worth no more than ten shillings an acre_, _although the
grass fields contained the whole years crop_. Yet this same gentleman,
required from _these very fields_, _so valued by himself at ten shillings
an acre_, a return in dung and rent of _about five pounds an acre_!—So
different were his powers of appreciation, when employed for and against
Mr. Elsee.
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.
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