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 20s. 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 farm | £2606 | 15 | 0 | |||
| Expences of cultivation, harvesting, &c. | 1717 | 17 | 0 | |||
| Paid Jones and Green | 2066 | 3 | 10½ | |||
| Three years interest on the money for the hay, &c. sold to Mr. Ellis | 72 | 0 | 0 | |||
| Mr. Driver’s charge for oat and bean straw valued by mistake | 35 | 7 | 0 | |||
| Articles that the crown ought to have paid for | 930 | 8 | 0 | |||
| 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 12s. per load, (as he has been informed) making 215l. 12s. 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.