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Title: Statement of Facts, on the Injurious Treatment of J. Elsee, Esq.
Author: Elsee, J.
Language: English
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INJURIOUS TREATMENT OF J. ELSEE, ESQ.***
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
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.
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.
Mr. Elsee is further charged with being the cause of the suit about the
dung, as he refused to abide by an agreement made between him and Mr.
Ellis in February, 1821, when it was agreed at Mr. Ellis’s house, in the
presence of Mr. W. Masterman, that each should name a friend; _but it was
particularly mentioned that neither Mr. Mee_, _nor Mr. Driver_, _should
have any concern in the business_. Mr. Benton, of Hornchurch, and Mr.
Carter of Chigwell were named, and the White Horse, Romford, fixed as a
place to meet at when convenient. Mr. Ellis wrote a paper, and read it
to Mr. Elsee; it was signed, and put into Mr. Masterman’s hands; in a
short time the meeting was appointed, and the parties, with Mr. Carter
and Mr. Benton, met in Romford market, and were about to go to business,
but Mr. Ellis declined till a friend came whom he expected every minute.
The parties waited more than an hour, _when who should arrive_, _but_ Mr.
Mee _and his Son_! An altercation took place, and the business was not
proceeded in, but no one was to blame for this, except Mr. Ellis, for
introducing Mr. Mee contrary to the stipulation that he was to have
nothing to do in the affair. Mr. Carter and Mr. Elsee were ready to meet
Mr. Benton, but refused to admit Mr. Mee and his Son. Mr. Masterman then
gave the paper they had signed to Mr. Elsee, who handed it to Mr. Ellis,
but the latter handed it back to Mr. Elsee, as his nephew Smith had taken
a copy.
In conclusion we shall merely exhibit at one view the sum total of the
pecuniary injury that Mr. Elsee has sustained directly and indirectly in
these transactions.
The award for Rent was 2066 3 10½
Fixtures, &c. 930 8 0
Loss on Dung only, with Law Expences 1191 10 0
Half of Appraisement, paid Mr. Ellis 14 16 6
£4202 18 4
Received from Mr. Ellis 349 11 0
TOTAL LOSS £3853 7 4½
Such a result requires no comment; but in addition to this plunder of
property, there is the mental torture, and its consequent bodily
suffering, which cannot be expressed.
These circumstances would have been long since laid before the public,
but from various perplexities, and the very disastrous events that arose
out of this ruinous litigation. For some time Mr. Elsee had hopes of
being able to defend himself, as an eminent counsel told him he had a
cause that would triumph in any tribunal besides the chancery side of the
exchequer. And, on the reference, he was assured that nothing could
destroy the decisive proof in his favor. But all this was fallacious!
and only helped to involve him deeper and deeper in expensive
consequences.
He has, however, though late, been able to arrange these matters for
publication; and to take those steps that are yet open to him, as a
British subject, to obtain redress and indemnification; and the length of
time that has passed since the injury, furnishes an additional reason why
justice should now be the more promptly administered.
There are various minor circumstances that accompanied this before
unheard of persecution, which we purposely omit to mention, although they
strongly illustrate the _system_ of vindictive and malevolent hostility
with which Mr. Elsee has been pursued in the course of the transactions
we have detailed; but they would extend to too great a length, and we
have already made out a case which needs no farther illustration. We
therefore leave it in its simple and unadorned condition, to make its own
way to the conviction of the reader.—If any answer can be given to any
portion of our narrative, let it be made, and we shall be ready to meet
any enquiry, and to justify all that we have advanced. And if no reply
to our charges should be made, nor any redress afforded for the injuries
we have mentioned, the party aggrieved will at least have the consolation
of knowing that he has done his duty in protesting against the wrongs
which have been inflicted upon him under the mask of law, and from a
quarter where he ought rather to have met with protection than plunder.
To the public, and to those who are invested with authority for the
security of the public interests, the judgment is referred, without any
apprehension of what the public opinion will be, whatever influence may
be employed to prejudice the minds of those who have the decision in
their hands, as far as the interests of the individual are concerned. To
them the appeal will be forthwith made; and to complete the case, we
purpose giving the result in an appendix, that a useful example may be
set to other sufferers under undeserved injuries, of the advantage of a
persevering pursuit of justice; or a beacon set up to warn crown tenants
against putting themselves in the power of such men as Mr. Elsee has had
to deal with.
Footnotes.
{8} A striking instance occurs, on the very spot where Mr. Elsee has
been insulted and plundered, of the extremity to which outrage can be
carried, when the poor only are concerned. About the 1st of September,
1811, Mr. Elsee expected a few friends at his house on a shooting party,
and had ordered a gun to be brought from Havering Park farm to his house
at Chigwell Row. One of his servants was taking the gun, in pursuance of
this order, in company with another who was driving home a team of
horses. While these men were thus proceeding in their lawful business,
on the public road, and in the light of day, they were shot at, without
any offence, without any warning, and without seeing the lurking
assassins, who thought fit to sport in this way with human life, and who
turned out to be John Laver, his majesty’s woodward, and John Giffin,
well known on the forest as Black Jack, an under-keeper. The servant who
was driving the horses was dreadfully wounded; his hand, thigh, and leg
were torn by slugs and dog-shot, many of which had lodged in the flesh;
and the cowardly keepers, thinking this poor fellow had suffered enough,
permitted him to crawl home; but they seized the man who carried the gun,
and carried him a prisoner to Hog-hill House. Mr. Elsee, after directing
the man’s wounds to be dressed, procured the liberation of his other
servant, and obtained a warrant against the two keepers, who were brought
before the Rev. Mr. Layton for examination. The fellows admitted the
servants were walking quietly along the road; but they said they had
heard a gun fired about that part, an hour and a half before; a most
admirable reason, it must be confessed, for shooting his majesty’s
subjects in the high road! Laver admitted also that he had never seen
the men before; and when the magistrate expressed some surprize at his
conduct, his majesty’s woodward, who was the person who had fired the
gun, coolly answered, that he knew very well when to shoot!—Laver was
committed for further examination, and as there was no proof that Giffin
was aiding and abetting in the murderous transaction, he was discharged.
So far all was in the ordinary course of business; but the next
examination was attended by Admiral Harvey, M.P. for the county, and one
of the Verdurers of the Forest, who insisted upon it that the offence was
bailable; and although this was pointedly denied by the Rev. Mr. Layton,
his brother magistrate, the superior authority of that sapient member of
the legislature prevailed, and the blood-thirsty woodward was actually
bailed, and bailed too in the paltry sum of fifty pounds, to appear and
take his trial for a capital offence. Here began the mockery of the law,
and the conclusion was worthy of such a beginning. At the next assizes a
bill was preferred before the grand jury, upon Lord Ellenborough’s act,
and Admiral Harvey, being a member of the grand jury, undertook the
disposal of the affair. He began by asking the man who had been wounded,
and his fellow-servant, whether they had a hundred a year? The poor
fellows were day labourers, and of course were obliged to answer the
impartial and enlightened questioner in the negative. Upon this, the
bill was thrown out, as if cutting and maiming day labourers was no sort
of offence in this land of freedom; and leaving it to be inferred, by the
admiring inhabitants of Hainault Forest, that persons not possessed of a
hundred a year, were as fair game to the king’s woodward, and the
keepers, as the vermin of the forest itself.
{15} By the exertions of Mr. Elsee, five true bills were found against
the king’s woodward for stealing timber. He was convicted upon the
first, and not tried upon the others. But instead of being transported,
a fate which might have waited an honester man, he made interest
somewhere to obtain a pardon! Nor was this all; for, in a short time he
was restored to his place on the forest, as if for the express purpose of
affording every facility to the progress of timber stealing. As might be
expected, in the following year, as Mr. Elsee and the Deputy Surveyor
were riding in the forest, they found one Wilson, who had been a witness
against the convicted woodward, Cowderoy, and several others, cutting
down oak pollards. In this ride alone, no less than 48 stubs, or stools,
of oaks were seen, that had been recently cut down without any authority;
and the Deputy Surveyor told Wilson, the way they went on outstripped all
their former proceedings in this respect. Yet no notice was taken or all
this; and when another person, named Smith, some time after was detected
in cutting down young spear oaks, in the month of October, carting them
home before daylight, and hiding them on his premises, the proper
authorities were in some way or other prevented from interfering; and the
law expences which were entailed upon Mr. Elsee, for his exertions to
prevent such depredations, amounted to more than a thousand pounds.
{19} In the printed conditions for the letting of these farms, a very
extraordinary difference was observable between that in the possession of
Mr. Elsee, and the rest. This difference consisted in a stipulation
respecting a certain proportion of dung to be brought in return for the
hay and straw carried off the farm; a stipulation not extended to two
other farms, let at the same time, and to the same person; and this
stipulation had been made without consulting Mr. Elsee, although he was
then merely a tenant at will, holding the land to suit the convenience of
the crown, which had no claim on him for any thing beyond the rent; and
as he had paid for the dung on his entrance upon the farm, it was as much
his property as the hay and corn, and he had an undoubted right to take
away or sell all crops, dung, &c. up to the period of his leaving the
farm; nor could the crown have interfered in any way to prevent his
disposing as he pleased of his own property; but Mr. Driver, under
promise of some advantages and accommodations, which were never realized,
induced him to sign an agreement which left him at the mercy of Mr.
Driver, and the consequences were indeed disastrous to the interests of
Mr. Elsee.
{23} This seems extraordinary language for the lips of an agent of a
public board; and particularly after his letter, as given in page 18,
where he states that he was commissioned to receive offers for the
letting of the farms, which he after pretended to say had not been
surrendered. Whether this was merely a contrivance to get Mr. Elsee into
the dilemma in which he afterwards found himself so fatally involved, we
must leave our readers to determine for themselves.
{25} The condition proposed was that two load of rotten spit dung was to
be brought on to the farm for every load of hay carried off, and one load
of spit dung for every load of straw carried off the farm. With this
condition, as we have shewn, Mr. Elsee had no right to comply; but when
he had been deceived into the signature of the agreement, he became bound
for its performance, and was prepared to carry this condition into
effect. He was, however, prevented from doing this, as we shall shew
hereafter, by the extraordinary conduct of the arbitrators, and their
umpire, and was then compelled to pay more for the dung required under
this condition than the hay and straw sold for, in addition to the cost
of an exchequer process. This is being a tenant of crown land to some
purpose.
{26} This fact would almost afford conclusive evidence in a court of
equity, that the condition about the dung was one of the meshes of the
net intentionally framed to prevent Mr. Elsee from escaping the “ruin,”
that had been threatened. And such a conclusion would be further
strengthened, by the total disregard of every consideration and
stipulation in behalf of Mr. Elsee’s interests. We shall hereafter shew
the difference observed when Mr. Elsee had to pay, and when he had to
receive; and if the reader be a tenant of crown lands, he may make some
use of the lesson afforded him, in similar cases.
{27} This purpose, it might be harsh to guess was a determination to do
any wanton injury to Mr. Elsee; but in the face of the proof that no
legal proceedings were necessary to obtain possession of the farm, and
that they were persisted in when the crown could derive no benefit from
them, as if with no other object than to compel Mr. Elsee to sign the
agreement, of which every advantage was ultimately taken against him,
while he was obstinately denied, or cunningly deprived of the benefit of
the trifling stipulations in his favor, there is a very strong inference
that fair play was not intended, and that the power was sought, with a
wish to abuse it.
{28} Private calamity weighs but little with public men; and with some
persons it may perhaps appear unimportant to state, that the anxiety and
enormous expences attendant on the legal proceedings into which Mr. Elsee
was plunged by the natural desire of protecting his property as far as he
could, preyed so much upon the spirits of Mrs. Elsee, that there is great
reason to apprehend they accelerated, and perhaps occasioned the disease
which carried her to the grave.
{29} The difficulty of contending with the crown is proverbial, and the
reason is obvious. The crown has always a host of legal assistants
arrayed on its side, and those who in any way contest the claims set up
by its agents on its behalf, are looked upon rather as culprits by
certain persons, than as parties in a cause. Because the crown has no
interest in harrassing the subject, it is too hastily concluded that its
agents are never influenced by improper, personal, and vindictive
motives; and many a man has been ruined at the suit of the crown, for no
other offence than that of not bowing low enough, or bidding high enough,
to its servants. We have heard of an instance, in which a servant of the
crown became the bitter enemy of one of its tenants, after having very
freely partaken of his hospitality, because the lady of the official
gentleman thought herself not treated with all the respect to which she
imagined herself to be entitled, by the female portion of the family of
the crown tenant, although it is possible that the lady had received as
much as she could fairly claim, if all the truth were stated. Now an
offence of this sort, committed hard upon the expiration of a lease,
against one who had the ear of the great men, might produce a great many
difficulties about a renewal that would otherwise have been the easiest
matter in the world. If nothing could be said against the individual as
a tenant, it might be hinted that his politics were not of the right
orthodox description, and that his rent was a great deal too low for a
friend of liberal opinions. And if any dispute should arise, out of
which a law-suit could be picked, no better revenge could be devised, if
every one were as unfortunate at law as Mr. Elsee.
{31} It may be asked, why was Mr. Elsee compelled to sign, as the action
was not brought against him. The answer is, that his property was on the
ground—that his crops would have been seized—that he would have had all
the inconvenience to bear throughout, and all the expence in the first
instance, with the difficulty of proceeding against executors, from whom
he might not have been able to have recovered anything. Mr. Elsee,
therefore, had no hope of escaping without injury, but by placing
confidence in the professions that were made on behalf of the crown, and
he was deceived.
{47} This, it is admitted, even by Mr. Driver, was not taken into any
account, and he is obliged to admit that it ought to have been; yet when
Mr. Elsee took him the receipts, and required to be reimbursed the money,
upon the Surveyor’s own confession that it was due, he would give nothing
but evasive answers. Being pressed very closely upon the subject, he
said he would not pay it then, and he has taken care not to pay it since,
nor has Mr. Elsee ever been able to obtain it from anybody else. This
circumstance of omitting to take the land-tax into the account, proves
the necessity there was for a proper enquiry, and the examination of the
party, as to claims, &c. and this circumstance alone would have been
sufficient to destroy the award, in the court of king’s bench, if the
case could have been taken there, instead of being pounded in the equity
side of the court of exchequer.
{56} In all the proceedings the dung appears to have been a favorite
consideration with Mr. Driver and Mr. Mee; and by some means or other
they contrived to make Mr. Elsee pay more, in dung and money, than the
crops were worth; and he would absolutely have been a considerable
gainer, if he had left the hay to rot on the ground, instead of sending
it to market under the conditions imposed upon him.
{57} The costs of this award are also objectionable, inasmuch as the
time occupied was charged, and that exorbitantly too, in the business
between Mr. Elsee and the Commissioners; and if they had thrown in the
latter award, late and defective, and injurious to Mr. Elsee as it was,
there would have been no great sacrifice on their part; the more
especially as Mr. Elsee never agreed to the introduction of an umpire,
nor agreed to be bound by the decision of any person, except the
arbitrators, who were merely requested for an opinion to prevent any
altercation between the buyer and seller. And the parties seem rather to
have been aware that some objection might be made to paying them, so they
prudently contrived to pay themselves, in the following ingenious manner.
Mr. Elsee had employed Mr. Peake, at the Michaelmas of that year, to sell
his farming stock, and from the produce of the sale Mr. Peake deducted
the whole sum, and furnished Mr. Elsee with a receipt. This was another
deviation from the award, for it required each pay to half, but then they
had no money in hand of Mr. Ellis’s, and the safest way was to make sure
of a pay-master. The amount is only large in comparison with the duty;
but it deserves notice, as one amongst many proofs that Mr. Elsee’s purse
was never to be spared.
{59} The award was for 384_l._ 18_s._ but this included, as the
arbitrators and umpire afterwards discovered; some oat and bean straw,
not intended to have been valued to Mr. Ellis; and this was deducted,
three years afterwards, by Mr. Driver’s orders, which proves the power of
this gentleman to rectify any mistake that might be in favor of Mr.
Ellis, although he could not interfere with Mr. Mee’s award when the
object was to do justice to Mr. Elsee, even in the small matter of the
land-tax. It does not appear, however, by the Inventory that the
articles sold had been much over valued to Mr. Ellis; but if the Surveyor
had ordered nothing to be paid, we suppose his order would have been
omnipotent.
{65} Mr. Mee and Mr. Harding went to measure this stack of hay in
December, unknown to Mr. Elsee. Now the hay was got in, in July and
August; and the question here is, why the arbitrators and umpire did not
measure the stack before the award was made, on the 29th of October, that
the matter might have been adjusted at once, by stating the quantity of
dung which was required to be brought. Instead of this, no account of
the quantity of hay appears to have been taken, before this private
measurement of Mr. Mee and Mr. Harding, which was thus clandestinely made
to furnish evidence on the reference; and in point of justice Mr. Elsee
ought to have been acquainted with this proceeding, that he might have
had some one present on his part, to see the measurement was justly made.
If the arbitrators and umpire had done their duty at a proper time, Mr.
Elsee’s presence might not have been requisite; but against this
underhanded proceeding at such a rime, he has a right to protest.
{67} Mr. French, in 1805, when estimating the value of farming stock,
&c. in Essex, (the same county) rates the dung in the yard, as worth only
2s. 6d. per load; and when carted and turned over, at but 3s. 6d. As he
was calculating the full cost of every thing, this may be taken as a fair
average of the price for the county; yet witnesses were found to rate it
at 20s. per load; and, what in more extraordinary, a Referee allowed it.
It may be added that this estimate of Mr. French is that of a practical
former, that it was made in the neighbourhood of Romford, and that the
object was to shew the full extent of the expence of entering upon a
farm.
{69} This candid proposition, perhaps, was not submitted to the Referee,
or he could hardly have declined it. Indeed, Mr. Elsee frequently wished
to address Mr. Bolland himself, and point out the very clear state of the
case; but he was always prevented, by a promise of some future
opportunity. And when he attempted to do so, at the close of the
proceedings, he was informed it was too late, and that he must sit down.
Mr. Bolland then applied himself to form his award upon some grounds that
we cannot understand; and arrived at the wonderful conclusion that the
dung was worth considerably more than the hay fetched at market!
*** End of this LibraryBlog Digital Book "Statement of Facts, on the Injurious Treatment of J. Elsee, Esq." ***
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