Editor’s NoteEditor’s Note1524To John Fox18 March 1800 (Aet 52)

Sir

Though the passing of a judgment on the sums contained in your Clients Estimate of damage,² will not (I believe) rest with me, I make no scruple of proposing for your consideration a principle relative to such estimate: the rather, since having been acceded to at the first word by Mr Hodges, one of the two other immediate Tenants who are in the same situation with Mr Donne, it presents the greater likelyhood of being assumed and acted upon by the person, whoever it be, who is to judge.

Mr Donne and his Assistants state as the sum which he claims to receive from the public on account of damage by removal, at the time specified, the whole amount of the loss which on that occasion and at that time may be expected to be incurred. But on the other side, a circumstance that can not escape observation, is—that this loss, whatever it may amount to, is no more than the Tenant would have had to sustain gratis at the expiration of his lease: viz: on Lady pg 271Day twelvemonth: So that the real damage to be placed to the account of the Notice, is not the whole amount of the loss itself, but only the damage by the obligation of advancing the sum expressive of the amount of such loss, a twelvemonth earlier than it would have been to be advanced otherwise.

A person whose capital is invested in trade has a right to expect not mere common interest upon that capital, but mercantile profit. In Mr Pitts computation of the Income of Great Britain as printed in Mr Secretary Rose's Finance pamphlet³ of this year, 15 per Cent (I observe) is stated as the Average rate of mercantile profit in the Home trade. To a per centage to that amount, at least, it therefore appears to me that no person in that department can object.

To apply this principle to the case in hand: and without regard to the quantum, let us put sums merely by way of example.

Total value of the Stock, at the trade price (it is the price that would be given by one of the trade)—£1200:0.0

Loss by removal—(expence of conveyance loss by death in transplanting etc)—£400:0.0

Now says the Tenant this £400 is what I am entitled to receive of the public, to make me whole. No, says the Agent for the public: not so: for this same loss is no more than you would have had to sustain gratis, a twelvemonth hence, at the expiration of your lease. What you suffer for the accomodation of the public, by the exercise of the compulsive powers created by the Act of Parliament, is—not the loss of the £400, but the inconvenience of having it to sustain, a twelvemonth before it would have come upon you otherwise.

The present worth of your present stock of Goods thus invested in trade, is £1200: a twelvemonth hence, by the 25 March 1801 it would at any rate have been to suffer a reduction to the amount of £400: now, by the operation of the Act of Parliament, instead of 25 March 1801 the reduction comes upon you the 25th of March 1800: What you lose then by the measure is—not the capital itself, but the year's profit upon that capital: not £400, but (taking the rate of profit at £15 per Cent) £60.

Now then, Sir, should any error present itself to you as attached either to the principle in question, or to the application made of it, be assured you will not find any eyes more open than mine are to receive the intimation of it: and any correction that my conceptions may receive from your judgment in this behalf will have this further pg 272good effect, that I shall immediately communicate the benefit of it to Mr. Hodges, with an intimation to whom he is obliged for it.

On the other hand, should this view of the matter present itself to you as unimpeachable, it will be in every respect for the advantage of your client to receive the intimation (notwithstanding any disappointment that may be attached to it) at this earlier stage of the business rather than a later: and from a gentleman, who on every ground is so well entitled to his confidence, rather than from a person armed with the authority of Office, and whose decision will as such be apt enough to be regarded with an eye of jealousy.

Oh but (says the Tenant), the damage results not only from the earliness of the term, but from the suddenness of it. What I was to have had, was 24 days, and a twelvemonth, for the removal: what I am to have under the notice is only the 24 days.—No, (replies the Agent of the Public). Though the day named for quitting is the 25th of March (it being necessary that some one day in particular should be mentioned as a day to reckon from, and ceteris paribus, no day is so natural and proper as a Quarter day) yet that this was not the day on which you could really be obliged to quit, appears upon the face of the notice itself, and of the Act on which it grounds itself. You would have in the first place to stay, without giving any answer, till the 12th, the day specified in that behalf in the Notice. The earliest day on which the compensation could by possibility be tendered to you would be the 13th, after which you would have 21 days to consider whether to accept or to refuse it; then, in case of your non-acceptance, would come all the time requisite for the summoning the Jury, and it is not till after their Verdict given, and a second tender of the money made to you, or upon your refusal to the Clerk of the Peace for you, that your obligation to quit, upon an entry made by the Feoffee, would commence.

In the mean time, and it is what you are informed of by the Notice itself, no money for making the first tender would be to be obtained, but by the pleasure of the Lords of the Treasury, and their warrant for the issue of the money in consequence: so that whatever damage might eventually accrue by reason of the suddenness, you had time and notice to make the requisite application to their Lordships (through their Agent the Feoffee by whom the notice was communicated to you) for the prevention of it. This from the time of the Notice itself: not to mention the prefatory explanations that were given to you by word of mouth, previous to the delivery of it. In point of suddenness therefore, and want of time adapted to the casual demands of convenience, the change is rather in your favour. In both cases the time of the year is the same and is as favourable pg 273for removal of the stock of a Nursery as any. But under the natural expiration of the Lease, the obligation would have been peremptory: no door open for indulgence:—to quit at the day or to pay double rent together with the costs of a regular lawsuit, would have been your only alternative: and whatever might have been your plans and calculations about removal, should the season have deranged them ever so much, the obligation of removing at the day would not have been the less inexorable.

Another suggestion, Sir, though not strictly within the limits of my province, I am induced by the considerations abovementioned to throw out for your consideration: it regards the plan pursued by your Clients Coadjutors in regard to the putting of a value upon the Lease.

The premises comprised in the Lease are—1. the Nursery Ground, in his own occupation: 2. the other Tenements (Houses and parcels of land) which he lets. Of these latter, the rents according to the list he has furnished me with amount in the whole to £183:19: say £184. £184 paid in advance is therefore, according to the most liberal mode of proceeding, the maximum of what he could expect to receive on this score: since on those terms he would be a gainer by the difference between present and future money and by being exempted from losses by bad tenants, and want of tenants. This £184 then is what would be the utmost present value of this part of the interest conveyed by the Lease. But the sum set down by Mr Donnes valuers as the value of the Lease is £484.⁴ The difference therefore between £| |⁵ and the £184 viz £| |⁶ is what must have been meant to be charged by them, on some score or other, to the account of the Nursery Ground.—But on what score? This they should have said, that it might be judged of. Is it that they estimate the year's profit upon the Nursery Ground as amounting to that difference?—But here comes the same principle as before. For the same time he loses his profit upon the present Ground, for this same time he gains his profit upon the new Ground that he will take in lieu of it. Here, as before, the obligation to transfer himself to new Ground is not created but only brought forward. If ground suitable to his purpose would have been to be met with in the year 1801, it will be difficult to say why it should not be equally to be met with in the year 1800. On the other hand, as under the lease he would have had the whole year before him to look out for such fresh ground, it does appear to me that if he has not agreed nor before the time comes for settlement, has had it in his power to agree for pg 274ground adapted to his purpose, the uncertainty he would stand exposed to in this way presents a fair claim to an allowance on that score: though as to the quantum or even the proportion of that allowance that, as before, I waive the consideration of, as being a question foreign to my competence.

On this head I make no doubt of your recommending to his consideration, a caution of which were it only on the score of prudence (not to speak of probity) persons in his situation are apt to stand in need:—and that is not to manufacture damage—nor even to sit with hands across to wait for it, in hope of compensation: for the damage will be certain: the compensation far from certain: farther (I speak not without experience) than in a case where government is a party people at a distance would be apt to imagine.