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: 3s.: 10½l. 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 1,888l. 9s. 10½d. 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 177l. 14s. 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.