The Sun.
London, England, 1863-04-20 00:00:00

COMMISSION.

This was an action to recover compensation in damages
for injuries received by the bursting of the sluice of the
mid-level, brought against the clerk (as representing the
Commissioners) for negligence in not making and maintain-
ing the works in a proper and efficient manner. The action
was tried at Norfolk before Lord Chief Justice Erle, when
three out of the four issues left to the jury were found
for the plaintiff. The middle level consists of a por-
tion of the great level of the fens known as the Great Bed-
ford Level, and among the many great improvements in
that district during the past century was this drain, which
was constructed by commissioners under the provisions of a
special Act of Pariiament, and the object of the middle level
was to drain the upland waters and the sluice in question
was to prevent the influx of the tidal waters into the drain,
so as to overflow and submerge the lands which were below
the level of the sea at high water. The circumstances of
the overflow have been fully described in the particulars
published at the time, !Jut in order to make the application
intelligible we give a narrative of the accident. In order to
get rid of the drainage that for a long time used to fall
into the river Ouse, it was resolved to cut a straight
drain eleven miles in length through the country
known as Marsh Land, from Popham's Eau to the Marsh-
land sluice, running into the Ouse, and for that purpose an
act of parliament called the Middle Level Drainage Act, 7th
and Bth Vic., c. 106, was obtained, giving the commissioners
power to enter upon the marshland and make the cut re-
. . .

quired, imposing at the same time on the ^ commissioners
duties both onerous and difficult. By the act, full direc-
tions were given as to the mode in which the cut was to be
made, and the banks, the puddled clay walls, and the fences
were to be kept up and maintained, but a good and sub-
stantial sluice was to be made at the end of the cut next the
River Ouse, which is a tidal river. The sluice was built
between 1844 and 1846, consisting of a kind of three arch
bridge, each arch being stopped with double sluice doors
opening and shutting with the advancing and receding tide.
On each side of this bridge the banks sloped gradually down
to the bed of the river, which at the highest tide rose to
about 18 feet. Between the 22d and 26th of March, 1862,
one hole—though one witness said there were two holes—
was discovered on the west side of the banks shutting out
the waters of the Ouse 15 feet deep and font feet wide, the
appearance of which betokened approaching danger, and to
fill up which with stones and straw sundry efforts were
made, as it appeared, in vain, for on the 4th of May the
sluice was utterly destroyed, and on the 12th of May 6,000
acres of land were submerged, the crops destroyed, and
their fertility seriously injured.
Sir Fitzroy Kelly (with whom were Mr. O'Malley,
Q.C., Mr. Metcalfe, and Mr. Newton) moved by leave
reserved for a rule calling upon the plaintiff to show
cause why the verdict should not be set aside and
entered for the defendant, or, in the alternative. for a
new trial on the ground of misdirection, and that the
verdict was against evidence. The aciion was brought to
recover damages for the alleged negligence that had been
committed by the officers, agents, or servants of the com-
missioners in respect of the making and maintaining these
works. From some cause which had not even yet been dis-
covered, the accident complained of occurred, and injured
to a great extent more than 100 owners and occupiers of
land in the neighbourhood, and this was one of more than
100 actions that had been brought against the commis-
sioners, and showed the great importance of the case to
them. Before he detailed the precise charges of negligence
made against the commissioners the learned counsel con-
tended that the action was not maintainable. Secs. 137,
138, 237, and the sections immediately following of the 7
and 8 Vic. cap. 106 were the important sections relied on.
The commissioners consisted of certain proprietors of lands
within the Great Bedford Level district, and were consti-
tuted a body corporate for the purpose of executing and
maintaining those works. They were an unpaid public
body, having certain compulsory public duties to discharge,
and with limited funds at their disposal. The duties to be
performed by the commisioners could not be personally
discharged by them, and could only be performed by the
agency of engineers, contractors, &c., and he submitted
that such a body was not liable to an action for the negli-
gence of the servants, or any one acting under them. That
principle of the law would have been clear had it not been
for the recent inroads that had been made in the case that
had been supposed to have decided it, The commissioners
were taken from the landowners of the district, and at the
time of the accident they were not a corporate body, but
had been made so since. The plaintiff was suing the whole
as a body, and if any execution issued against them for
damages it would not go against their personal property,
but against the property of the board, which was exceed-
ingly small as their borrowing powers were exhausted.
The Lord Chief Justice said he thought the learned
counsel ought to have a rule on that point.
Sir Fitzroy Kelly said he hoped before the case came
on for argument that the law would be decided in the cases
now before the House of Lords. The negligence complained
of was that the commissioners had failed to do or could
have done certain things that would have prevented the
accident. In answer to that he said the works were executed
under the directions of Mr. Walker, the eminent engineer,
though the plaintiff had contended that he was incompetent,
and that the sluice and the banks had accomplished the
object for which they were intended from the time of their
construction till the accident, a period of 16 years. The
second point relied upon by the plaintiff was that before the
sluice was destroyed means might have been resorted to by
the commissioners to preserve it, which they failed to do.
Thirdly, that after the sluice was destroyed they failed to
adopt the necessary means for shutting out the tidal waters,
and prevent the inundation; and the fourth point of negli-
gence was in not puddling the hanks, &c., with clay, to pre-
vent the tidal waters from oozing through. The Lord Chief
Justice, in summing up, said it was but mere conjecture
what was the cause of the gates giving way ; but he (Sir F.
Kelly) considered the rational conjecture was that the tidal
water, by the gradual working and undermining of the
banks, had passed underneath and around the right wine of
the sluice, and by a sudden and irresistible pressure had
raised it up and destroyed it. The learned counsel then at
considerable length entered into the facts and the evidence
given at the trial on behalf of the defendants, which, he con-
tended, showed that every care and skill had been used in
constructing and maintaining the sluice, and that, after the
accident they did everything that skill and science could
devise to mitigate the evils resulting from inundation.
The Lord Chief Justice asked what issue the jury found
for the defendant ?

Sir F. Kelly said they found there was no want of skill
and care in the original construction of the sluice.

The Lord Chief Justice said the Court were of opinion
that the learned counsel must have a rule on the points of
law, but that with regard to the other points they would
consult Lord Chief Justice Erle before giving any decision.

CAMPBELL V. SP OTTISWOODE-LIBEL AGAINST THE
" SATURDAY REVIEW."

Mr. Bovill, Q.C., said this was an action brought against
the Saturday Review for libel, and tried before the Lord
Chief Justice at Guildhall, when the jury returned a verdict
for the plaintiff, damages £5O. He moved on behalf of the
defendant for a rule calling upon the plaintiff to show
cause why the verdict should not be set aside and entered
for the defendant, pursuant to leave reserved, or for a new
trial on the ground of misdirection, The two grounds,
however, resulted substantially to the same thing. The
plaintiff is a nonconformist minister, holding an appoint•.
ment in Moorfields, though he had ceased to officiate, and
now devoted himself to literature, and earned his living
by editing and contributing to the British Ensign and the
British Standard, and writing for other publications. The
jury in returning their verdict said specially that they be-
lieved the editor wrote the article complained of in the
honest, genuine, and bona fide belief that what he wrote was
correct. The plaintiff was the proprietor, in partnership
with Mr. Pratt, of the two papers above named, and some
years before the subject-matter in dispute he published in
them a Belies of letters addressed to the late Prince Consort
with reference to H.R.H. the Prince of Wales, in which he
stated, and no doubt entertained, the sincere conviction that
great danger was to be apprehended from hia royal high-
ness's visit to Canada of his becoming a Roman Catholic,
from his being placed in communication with certain parties
there, and of his becoming an infidel from his going to Ox-
,rd University. (Laughter.)

The Lord Chief Justice —And also from his visiting Rome.
(Laughter.)
Mr. Bovill—Yes. The plaintiff in his cross-examination
had shown that he addressed those letters to the British
public in all sincerity, and that they had the effect of in-
creasing the circulation of the paper 100,000 copies, and
the way be acted was to call upon those who entertained
similar views to subscribe for the gratuitous circulation of
copies. Having been so successful with the Prince Con-
sort's letters he entered on a new subject in the autumn of
1861, that of the salvation of the Chinese—(laughter)—by
the publication of a series of letters in the Ensign and
Standard, and he called on the public in the most solemn
manner to participate in attaining that end by subscribing
towards the gratuitous circulation of the two papers.
Mr. Justice Mellor—Were they for circulation amongst
the Chinese ? (Laughter )

Mr. Bovill—No. The letters were written in English—
but to increase the circulation.

The Lord Chief Justice said the learned counsel had not
put it quite fair towards the plaintiff. The circulation was
to be the means by which the solemn object was to be
achieved. It struck one as absurd
that these letters were
to stir up the community, and to stimulate them into active
exertion for the conversion of the Chinese, and it brought
down a fair amount of ridicule from the writer of the article
complained of. If he had stopped there no one could have
blamed him, but he had gone further.
Mr. Bovill—And, as the writer humorously observed,
" all at the low charge of one penny." (Laughter.) The
plaintiff was not in the position of a private gentleman en-
tertaining those views, but as one who, by publishing them
had called attention to them. The plaintiff in his letters
had called attention to the importance of subscribing, and
in
.many of them he requested that the subscriptions should
b e forwarded to his esteemed publisher (Mr. Pratt, who was
in partnership with him). He addressed his readers as the
friends of truth as it is in Jesus, and after speaking of the