[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 384l. 18s. 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!