water: omne majus continet in se minus. "Average" and "claim arising from jettison or leakage" mean the same thing. Brett (Cohen with him), for the defendants.-The whole scope of the policy shows that the only object of the clause as between the underwriters and the assured was to meet the case of the guano being damaged by bilge-water from the ordinary leakage of the ship. Questions have arisen whether such damage did or did not come within [*436 "average loss," and the present clause was inserted to prevent the litigation which often arose from that state of things. The intention was that the underwriters should not be liable except for a total loss, and that they should be able to protect themselves from a disputed claim in respect of this description of cargo. This construction gives effect to all the words in the clause by making them apply to different things; whereas the reading suggested on the other side makes "claim" and "average" synonymous. [WIGHTMAN, J.-Could the plaintiffs. have recovered if those words had not been inserted?] If the damage arose from admitted sea peril they could; but this clause was introduced to prevent litigation as to whether the loss arose from such or not, e. g., a dispute might arise whether rough weather amounted to a peril of the sea. [BLACKBURN, J.-That is a controversy of fact.] There can be no jettison consequent upon sinking. [BLACKBURN, J.-Suppose the ship sank in not very deep water and was raised, the loss would be partial. COCKBURN, C. J.-How is leakage consequent upon fire? Leakage has been applied to an escape of part of a dry cargo which is capable of becoming liquid by the access of water, and it may be applied to guano becoming moist and in a leaky condition. Jettison clearly applies to the cargo, therefore probably leakage does.] Edward James, in reply.-If the words in this clause are used in' their proper sense it will not be possible to give effect to them all. "Leakage" cannot mean damage to the ship; for there will be bilgewater in the normal state of the ship, and water may come into her without leakage from shipping a sea; in which case pumping would be necessary and some essential particles of the *guano would be [*437 lost, though not from throwing any overboard. [BLACKBURN, J., referred to Hills v. The London Assurance Corporation, 5 M. & W. 569.] COCKBURN, J.-It is very doubtful what the owners of the goods and the underwriters meant by the language used in this policy. Their object was, as Mr. Brett suggests, to prevent disputes arising as to this commodity, which is brought over in large quantities, and is subject to disintegration by the access of sea water; but their endeavour to obviate the necessity of litigation has led to it. If punctuation had been employed, two commas would have made the sense clear, but in the absence of that assistance I am in doubt how the clause ought to be read. There is, however, great force in the argument that the words " or claim arising from jettison or leakage," &c., are superfluous, if not taken as explaining the preceding word "average." The claim arising from jettison or leakage is "average," and it was unnecessary to put in those words if the construction contended for by the defendants is the true I am inclined therefore to think, that the true reading of the policy, putting a comma after the word "claim," is this, "free from all average or claim, arising from jettison or leakage, unless consequent one. upon stranding, sinking, or fire," so as to make the whole description apply to the words "average or claim." The words "or claim" have been introduced to enlarge the meaning of the word "average" in case of any claim arising which might be thought not to fall within it. WIGHTMAN, J.-It appears to me that the word "claim" was introduced ex abundanti cautelâ to include *everything which might *438] possibly arise from jettison or leakage-there might be a claim as well as average for a loss arising from either. The words "arising from jettison or leakage" must be applicable to the whole of the earlier part of the sentence, so that, whether the loss was or was not strictly an average loss, in either case if it arose from jettison or leakage it is to be excluded. BLACKBURN, J.-Possibly the words "or claim" were introduced to show that the word "average" was meant to be used in an extended sense, not merely for particular average, but for general average. But whatever may have been the object of introducing them, there could be no claim capable of being enforced against the underwriters which would not come within the term "average" and therefore the words "or claim arising from jettison or leakage" are redundant, unless they were introduced to show that the word "average" was restricted to average arising from jettison or leakage. The plaintiffs are therefore entitled to recover unless the loss was an average or claim arising from jettison or leakage, and not consequent upon stranding, sinking or fire: and from the facts it appears that the loss did not so arise. Judgment for the plaintiffs. Error was brought on this judgment, but the defendants deeming the case concluded by the preceding one of Carr v. Montefiore, ante, p. 408, declined to argue it, and the judgment was accordingly affirmed. Edward James (Milward and W. Potter with him), for the plaintiffs. t (T. Jones, Northern Circuit, and Watkin Williams with him), for Judgment affirmed. ndants. END OF EASTER VACATION. CASES ARGUED AND DETERMINED IN THE QUEEN'S BENCH, IN Crinity Cerm, XXVII. VICTORIA. 1864. The Judges who usually sat in Banc in this Term were: COCKBURN, C. J. CROMPTON, J. BLACKBURN, J. The following cases, decided in this Term, have been already reported. GANDY v. JUBBER ante, p. 92 HODGMAN. THE WEST MIDLAND RAILWAY REG. v. THE INHABITANTS OF GREAT SALKELD 377 ROBERTS v. ROBERTS REG. v. THE OVERSEERS OF SOUTH WEALD *COE v. WISE, Clerk to the MIDDLE LEVEL Drain- 384 . 391 Public body.-Negligence.-Agent.-Damage.—Middle Level Drainage Commissioners. [*440 The Middle Level Drainage Commissioners were empowered and directed by statute to make eut, and make and maintain at or near its opening a sluice to exclude the tidal waters. They were trustees for a public purpose, and acting without reward. The sluice was properly made, but owing to the absence of due care and skill in the persons employed by them to maintain it, the sluice burst, whereby the tidal waters came in and flooded the neighbouring lands. There was no proof that the Commissioners had negligently or improperly employed unskilful or incompetent agents. Held, that the Commissioners were not liable to an action at the suit of the owners of the neighbouring lands: per Cockburn, C. J., and Mellor, J.; dissentiente Blackburn, J. THIS was an action against the defendant, as clerk to the Drainage Commissioners for carrying into execution stat. 7 & 8 Vict. c. cvi., for B. & S., VOL. V.-16 improving the drainage and navigation of The Middle Level of the Fens. The declaration, dated the 24th October, 1862, alleged that the plaintiff was possessed of lands in the parishes of Tilney All Saints, Tilney cum Islington and Tilney St. Laurence, in the county of Norfolk, within a certain district called Marshland Fen, and that by the said Act it was enacted that the Drainage Commissioners should make and maintain a cut for conveying the water from the Middle Level into the river Ouse, and which cut should commence at the sixteen feet river, about half a mile above the lower end of the said river, and should terminate at the river Ouse, southward of a sluice called the Marshland New Sluice, and the bottom of the cut at the lower end thereof should not be less than fifty feet in width, nor less than three feet below the datum line of the several plans and sections of the cut deposited with the clerks of the peace of the counties of Norfolk, Cambridge, Huntingdon and the Isle of Ely; and *the sides of the cut should be made with *441] gradient and proper slopes from the bottom thereof to the surface of the land, and the Drainage Commissioners should also, where necessary, make and maintain in a substantial manner, a bank on each side of the cut, with front and back forelands thereto; and each of the banks should be constructed with a good and sufficient puddle clay wall in or near the centre thereof, of a proper depth, width, height and dimensions, and so as effectually to defend the lands lying on each side of the drain from the passage of the water through the bank at all times, and the puddle wall and banks should be so formed and maintained as effectually to prevent the water of the cut from passing over or making through the same into any of the adjoining lands; and that by the said Act it was further enacted that the Drainage Commissioners should make and maintain a good and substantial sluice of brick and stone at or near the entrance of the cut into the river Ouse, with two or three openings, the waterways of which should not altogether be less than fifty feet, and with doors to each of the openings of sufficient height to exclude the tidal waters, and the sill sluice should be placed not less than six feet below the aforesaid datum line in the Act mentioned; and that after the passing of the said Act the Drainage Commissioners did make a cut for the purpose aforesaid, commencing and terminating as by the Act is directed (to wit) in and through Marshland Fen aforesaid, and did also make a sluice of brick and stone at or near the entrance of the said cut into the river Ouse: Yet the Drainage Commissioners so carelessly, negligently, unskilfully, and wrongfully conducted themselves in and about making and maintaining the cut, banks and walls thereof, and in *442] and about making and maintaining *the said sluice good and substantial, that by means of such their careless, negligent, unskilful, wrongful and improper conduct the tidal waters burst, ran and broke through the sluice and into the cut, and broke down and passed over and through the banks of the cut into Marshland Fen and overflowed and submerged the same and the lands of the plaintiff; and by reason of the premises the plaintiff, who then was seised in his demesne as of fee in certain part of the lands, and possessed for an unexpired term of years of certain other part of the lands, not only was and for s long space of time would be expelled from and deprived of the use of his lands, but certain crops then on the lands were destroyed, and the plaintiff lost the gains which otherwise he would have made of the same, and also by reason of the premises the lands of the plaintiff became saturated with the waters of the sea, and made unfit for bearing crops, and the fertility of the same has been destroyed: claim, 40007. Pleas. First. That the Drainage Commissioners were not guilty. On the trial, before Erle, C. J., at the Norfolk Spring Assizes of 1863, the following facts were proved. The defendants, the Middle Level Drainage Commissioners, were constituted by stats. 50 G. 3, c. 125 (local and personal), and 7 & 8 Vict. c. cvi. The cut and sluice mentioned in the declaration, and directed to be made by the 137th and 138th sections respectively of stat. 7 & 8 Vict. c. cvi., were made from the designs and under the superintendence of the late Mr. Walker, an eminent civil engineer, and completed in *1848; and from that time until the present the cut had been [*443 used as the channel for conveying the waters from the Middle Level into the river Ouse, and thence by the Ouse to the sea. The Commissioners contracted for the making of a puddle wall on the banks of the cut in the very terms of stat. 7 & 8 Vict. c. cvi. The cut passes right through Marshland to the river Ouse, which it enters at the above New Sluice, but Marshland is not drained by the cut, and it has, and for a long time has had, a system of drainage of its own (except as hereinafter stated), wholly separate and distinct from that of the Middle Level, but it drains into the Ouse. In pursuance of stat. 7 & 8 Vict. c. cvi., s. 170, certain lands in Wiggenhall, consisting of about 300 acres, within Marshland, have been from the opening of the cut, and still are, drained by the same. Marshland contains about 40,000 acres, and extends from the Middle Level to the river Ouse. The plaintiff is an owner and occupier of lands in Marshland, adjoining to the cut. From the completion of the works in 1848 till after the failure of the sluice after mentioned, William Bond was the sluicekeeper at a salary of 50l. a year, with a house and garden, and the only person who lived at the sluice. Previously to having the charge of this sluice he had been sluicekeeper at the Tongs Sluice, the outlet of the cut through Marshland, by which the Middle Level drained previous to the making of the cut in the declaration mentioned. He was brought up with his father who was a sluicekeeper, and his whole life had been spent in such work. He had to enter in a book the height of high and low water at every tide as *denoted by the gauges fixed at the sluice, and it was his duty, if he observed anything unusual, to report it to [*444 the superintendent or resident engineer of the Commissioners, in order that he might inspect the matter and do what was necessary to keep everything in proper order. From 1853 until after the fall of the sluice Robert Lunn was the superintendent or resident engineer of the works of the Commissioners, and lived at March, which is about the centre of the Middle Level district, and is about 16 miles distant from the sluice. He had not gone through a regular scientific education, but before his appointment had had considerable experience in engineering works, and had been concerned in the construction of the cut, banks and bridges as |