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.
Another corroboration of this calculation is to be found in Mr. Mee’s
award, (_see page_ 55) which amounts to 384_l._ 18_s._ but deducting
35_l._ 7_s._ for the oat and bean straw, 10_l._ for the chaff, 30_l._ for
the fixtures, and 29_l._ 13_s._ for his expences, leaves only 279_l._
18_s._ for 132 acres of the best meadow land, and 100 acres of wheat
straw.
Supposed Expences of this 132 Acres, sold to Mr. Ellis and the Crown, in
Three Stacks.
£ _s._ _d._
To bush harrowing, rolling, fencing, 33 0 0
&c. at 5_s._ per acre
Mowing, making, carting, stacking, 132 0 0
thatching, &c. at 20_s._
Taxes, interest of capital, and 66 0 0
labour
Forty-six acres fallowed in 1813, 138 0 0
ploughing four times, harrowing,
rolling, picking, &c. at 60_s._ per
acre
Twenty five acres of it dunged with 250 0 0
good spit dung, 20 load per acre, at
10_s._ per load
Rent and taxes in 1818 upon 46 0 0
forty-four acres
Seed for one hundred acres, 250 100 0 0
bushels at 8_s._
Ploughing, sowing, harrowing, 100 0 0
preparing seed, &c. at 20_s._
Hoeing, weeding, and fencing, at 50 0 0
10_s._ per acre
Reaping, harvesting, carting, 100 0 0
stacking, thatching, &c. 20_s._
Housing, threshing, dressing, and 100 0 0
carrying out, at 20_s._
Taxes at 10s. per acre 50 0 0
Expences 1165 0 0
Mr. Mee’s 279 18 0
valuation
159 580 11 0
quarters
of wheat
Produce 860 9 0
Total Loss £304 11 0
An Account of the Hay stacked at Windmill Hill.
£ _s._ _d._
Eighty-one acres of meadow, supposed 20 5 0
to produce one load and a quarter per
acre, bush harrowing, rolling,
fencing, &c. at 5_s._ per acre
Mowing, making, stacking, thatching, 81 0 0
and fencing, at 20_s._
Eleven load cut from stack in 13 15 0
Havering Park in September, at 25_s._
Sixty-five acres not worth ploughing, 50 0 0
which had lain two or three years,
and from which Mr. Elsee meant to get
a crop of oats the last year, but Mr.
Driver and Mr. Ellis both requested
him not to plough it; to oblige them,
therefore, Mr. Elsee mowed it, and
got perhaps half a load an acre,
hardly worth the labour, it being
chiefly water grass and bracken.
Cost of getting in
Taxes upon this 146 acres at 10_s._ 73 0 0
per acre
From the above produce 119 loads were 140 6 6
sold, the charges on which were as
follows:—cart hire 13_s._ binding
3_s._ market hire 4_s._ 1_d._ extra
expences and turnpikes 6_d._ truss of
hay and feed while loading 3_s._
making together 23_s._ 7_d._ per load
£378 6 6
Proceeds, 472 6 0
highest
price
3_l._
18_s._ per
load,
lowest
price
2_l._
6_d._—119
loads
Waste hay, 46 0 0
say worth
Total 518 6 0
produce
Deduct 378 6 6
expences
Net £139 19 6
produce
Expences upon the 20 Acres of wheat carried to Chigwell.
Fallowing in 1818, ploughing four times, 60 0 0
harrowing, rolling, picking, &c
Seed wheat, fifty bushels, at 8_s._ per 20 0 0
bushel
Ploughing, sowing, &c. 20 0 0
Rent and taxes in 1818 20 0 0
Hoeing, weeding, &c. at 10_s._ per acre 10 0 0
Cutting, carting, and harvesting 20 0 0
Threshing, dressing, and delivery 20 0 0
Taxes in 1819, at 10_s._ 10 0 0
£180 0 0
Produce, 30 146 0 0
quarters 1
bushel of
wheat
13 load of 26 0 0
straw, at
40s. per load
Loss upon 8 0 0
this twenty
acres
£180 0 0
Loss upon 232 304 1 10
acres valued
to Mr. Ellis
Loss upon the 8 0 0
twenty acres
of wheat
312 11 0
Profit upon 139 19 6
146 acres of
grass
Net Loss of £172 11 6
398 acres
Mr. Elsee’s statement of the land mowed is in strict corroboration of the
printed particular, as given in to the arbitrator, in the following
document.
_Hay stacked at Windmill Hill_, _and disposed _Hay stacked at Havering Park_,
of by Mr. Elsee_. _and taken by the Crown and Mr.
Ellis_.
No. I. No. I.
_Acres_. _Acres_.
14 Bourne Bridge 12 5 Barn 12
mead
26 Long Mead 32 7 Forebury 20
27 New Mead 14 11 Brook 6
bottom
38 Part of twenty acres 4 40 Part of 28
Williper
hill
40 Part of Williper 16 — 66
Hill
44 Collier row hoppet 3
— 81
No. II. No. II.
_Waste Land_.
Windmill hill 16 41 Collier 20
row
Great sand hill 16 42 Ditto 10
Little sand hill 7 43 Part of 18
twenty
acres
Sixteen acres 16 45 Collier 29
row
Lodge Pen 4 77
Collier row 6 65 Deduct 11 66
cut of
146 132
Yet it was calculated by one Harding, who was a _jobbing carpenter_, that
256 loads were to be accounted for, besides the 123 valued to Mr. Ellis,
which makes 379 loads, that is 108 loads _more than the land could
produce_. The question here is, _how came this carpenter employed_?
_The arbitrators and umpire_, _one would think_, _might have measured a
hay-stack_, _without his aid_, _as they knew so well how to charge for
doing it_.—But they perhaps wanted some one _to bear out their
statements_, and the following anecdote will shew that Harding was finely
adapted for their purpose.
This Harding 20 years ago lived in Hertfordshire, where he failed as a
farmer, and travelling into Essex, he followed his original business of a
carpenter. Mr. Elsee was building a new house near Romford, and employed
him as one of the carpenters. At the same time a bricklayer named Jervis
was engaged to do the plastering by the yard, and his work to a certain
extent had been measured and paid for.—But some time after Jervis
informed Mr. Elsee he had made a great mistake, as the work came to
_three times as much as was made of it_. After some enquiry it turned
out that one of the carpenters, _this very Harding_, had been measuring
it for him. On this it was remeasured, and it was found to be _less than
he had been paid for_; and then Harding found out that _he had measured
his feet by_ 3 _instead of_ 9 _to the square yard_. They were both
discharged for this, but Harding took care to measure the haystack _by
himself_!
After this it may not be surprising that he should say the stacks were 15
or 16 feet high, when every farmer knows they are seldom more than 6 feet
to the eaves. And as further proof of his honesty and ability he said 8
inches was the average height of a truss of hay, when some of this was of
the worst quality, and the trusses measured from 14 to 16 inches. This
was deposed to by the hay-binders, and all the witnesses. Williams
particularly said he was obliged to borrow larger carts, as the hay was
so bulky, he could not load it upon his own.
A most, impertinent attempt was made to discredit the accounts of Mr.
Elsee, but they happened to be kept in an old book of trading accounts,
_and were folioed from the beginning more __than 20 years ago_, so that
any deception was out of the question. This impertinence is the more
reprehensible, as coming from one who had not hesitated to _falsify_ the
evidence of one John Young, whose statement _exactly corresponded_ with
Mr. Elsee’s accounts.