The Sun.
London, England, 1864-05-27 00:00:00

The most significant item of intelligence brought to
us by the Scotia is the fact that gold was at 183
when the mail left for Europe.

The protracted litigation in the case of COE v.
WISE, clerk to the Middle Level Drainage Com-
missioners, is destined to follow the course of.other
causes celebres, and after passing through the inter-
mediate stages will eventually be settled in the
House of Lords. It must be remembered by our
readers that in May, 1862, the sluice of a recently
made water course or cut employed to carry off the
water from certain low lands near the mouth of the
Ouse gave way—the tidal waters rushed up the cut,
the embankment gave way, and some five thousand
acres of land were submerged. A considerable time
elapsed before the ingress of the water could be
checked and the land again reclaimed ; this, how
ever, was at length effected. The small proprietors,
whose all had,in many oases, been destroyed, turned
for redress and compensation to the commissioners,
whose duty it was to see that the embankments and
sluices of the dykes were kept in proper repair, and
who were empowered by act of Parliament to levy
rates for that purpose. The commissioners, how-
ever, denied their liability, and the present action
is only one of many, but upon the ultimate decision
in this one case all others of a similar nature depend ;
and altogether the amount of compensation claimed
in this individual instance is but small—the sum in
reality at stake is, we believe, upwards of £60,000.
The case for the plaintiff was rested on the alleged
negligence of the commissioners, servants, engineers,
and contractors, both in the original construction of
the works and in their subsequent maintenance,
and especially the case rested on the alleged neglect
of the contractors to puddle the bank, and the
neglect of the resident engineer to observe and
attend to the first symptoms of danger. It was
tried last year at the Spring Assizes before Lord
Chief Justice ERLE, when a verdict for the plaintiff
was obtained, and the present appeal was made
against that verdict by the defendants, on the
ground that being public functionaries, acting
gratuitously for the public, they could not be held
liable for aay loss sustained by the plaintiff. Last
Tuesday, in the Court of Queen's Bench, the
Court decided the matter in favour of the com-
missioners, and the plaintiff will therefore carry
it to the House of Lords. The decision
was, however, not unanimous, the Lora Chief
Justice and Mr. Justice MELLOR being in
favour of the commissioners, while Mr. Justice
BLACKBURN considered that the rule obtained to
set aside the verdict for the plaintiff should be dis-
charged. It is a case of considerable importance,
and the result, whatever it may be, will effect a
large portion of the community. For our part, we
cannot see on what grounds the commissioners can
reasonably claim immunity from the responsibilities
of an office, the holding of which is not compulsory,
but which is undertaken f)r their own advantage.
The commissioners are all landed proprietors in the
district benefited by the Middle Level Drainage
they had undertaken to carry out, or cause to be
carried cut. It was provided by the Act that
owners of 200 acres of land liable to be taxed under

it might appoint a commissioaer, and that the
oommiseioners appointed under that and the pre.
vious Acts, which were not repealed, should form
the Middle Level Drainage Commissioners. It
was provided that the banks, sluices, and other
works should be vested in the commissioners, anti
it was expressly enacted that they should make
and maintain the new cut and sluice. They ful-
filled this undertaking in the usual way, by em-
ploying engineers to prepare plans, and contractors
to construct the works; and it is not denied that
the plans and specifications comprised puddle, and
all that we s requisite for the construction of works
required by the Act. The new cut was made, with
the banks and sluice, and had been in existence
about twelve years at the time of the inundation,
having been completed in 1848. Now the question
may very naturally be asked,—What is the use of
appointing commissioners to take charge of works
of great importance, upon whose good construction
and Efficiency the safety of a vast amount of pro
perty and even of human life depends, if they may
neglect the duties which they have undertaken
with impunity ? We do not for a moment attri-
bute wilful neglect to the commissioners; but, from
the evidence adduced at the time of the catastrophe,
it is perfectly certain that there was negligence,
and that proper means were not taken to
prevent accidents when the sluice and the adjacent
banks were found to be in an unsafe state. In the
trial before Lord Chief Justice EItLE, the jury did
not find that the banks and sluice had been
badly constructed, as stated• by the plain tiff, but
they did find that after their construction they
had not been kept in a proper state of repair.
Mr. Justice BLACKBURN, in giving his view of
the case last Tuesday, very properly observed that
the Drainage Commissioners, from the nature of
their body, could not maintain the sluice except
through the agency of others, surveyors, engineers,
and other agents acting far them; and while it
was argued, on behalf of the defendants, that the
finding of the jury must be understood to mean
that the defendants had negligently chosen in-
competent persons, he accepted it only as a find-
ing that the sluice might, with due care and skill,
have been maintained, and that due care and skill
were not applied to maintain it. The Drainage
Commissioners, as Mr. JusticeßaeceisuuN showed,
are not held responsible for the negligence of their
servants, on which ground they might claim ex
emption on the plea that persons entrusted with
the performance of a public duty, which they dis-
charge gratuitously, are exempted from liability
for the negligent acts of those employed by them ;
but they are " not sought to be charged for the
collateral negligence of their servants, but for the
non-fulfilment of a duty wnich was, it is alleged,
imposed by ;Act of Parliament on the Drainage
Commissioners themselves." The fact of the mat-
ter is that a false economy was the root of the
evil. The expense of keeping the embankment and
sluice in a state of repair was defrayed by local
rates ; now the commissioners being, in most cases,
large landed proprietors were directly or indirectly
interested in keeping down the rates to e minimum,
and the engineer who recommended the smallest
outlay upon the works would naturally find most
favour with the Commissioners. This does not
apply particularly to the case of the Middle Level
Commissioners,for it is the system pursued through-
out the entire ten dis!ric!s. It may be a very
natural course to follow, but it is at the same time,
a most unwise one. It is always hoped
that the embaukments will not give way, and when
they do so, every one exclaims, " Who would have
thoughtt
to it
be" trliflVeadterwiistha,nasevtehre-acsatidn
is
notever-actingcalamityagent
a and
Sheffield can testify ; and it is solely by neglecting
the necessary precautions that the Middle Level
sluice and embankment gave way, and hundreds of
industrious fannies were reduced to destitution.
It would certainly be hard to compel a few indi-
viduals out of their private moans to reimburse the
numerous sufferers by this calamity ; and although
we consider the Commissioners to be legally liable
to the injured parties, we are nevertheless of opinion
that those who appointed them ought to pay the
expenses attendant on the misfortune which was
occasioned by the negligence of those in their eer-