RESIDENT MAGISTRATE'S COURT.

Nelson Evening Mail, Volume XII, Issue 135, 9 June 1877, Page 2

RESIDENT MAGISTRATE'S COURT.

[Before L. Broad, Esq., R.M.] The following judgments in cases recentty heard in the Resident Magistrate's Court were delivered this morning: — Fletcher v. Pattxb. The plaintiff is entitled to recover the first item of £9 as set out in his claim, because the contract was entire. The wages had actually accrued. Defendant relies upon a clause m the agreement to the effect that he shall be entitled in the event of damage through plaintiff's neglect to retain wages "accruing" up to the amount of such damage. That seems simply to amount to this: that the defendant may apply any wages in his hands accruing to the plaintiff under the agreement towards the liquidation of such damages as a competent Court may flnd to be due to the defendant in an action against the plaintiff for damages for negligence. But we cannot ascertain that damage in these proceedings, although there may be sufficient ground for asking the Court to stay execution pending the result of an action in tort. As regards the second item tha plaintiff is noi entitled to recover anything. Ha was properly dismissed for gross negligence. Being in charge of this small vessel (for a voyage of only a few hours) carrying passengers, having under him a quite incompetent man, but of whose incompetency he could scarcely have been ignorant, for the man had been sailing with him for a month, ha left the vessel and the lives of all on board at the mercy of this incapable person, on a dark thick night, when he ought to have known he could not be very far from land. What might have been expected happened. Tha vessel within a couple of hours struck upon the Boulder Bank. But even if the man had been quite a competent seaman, the master had no right on such a night to have gone below. It was his unquestionable duty to renjain on deck and direct the navigation of the boat. As to the third item the plaintiff cannot recover it. He did an act which by the law of the land is unlawful. For this he was convicted and fined. Hia master is not bound to indemnify him.

Hahkness v. Knight.

I find it impossible to distinguish this case in principle from Willshear v. Cottrell, 1 E. and B 689^-. Walmsley 'v. Milne, 7 C. B. N. S. 115— Mather v. Frazer, 2 K. and J. 286— and Holland and another v. Hodgson and another, 26 L. T?. B. 709. In the first of these cases the Court of Queen's Bench had to consider what articles passed by the conveyance in fee of a farm. Amongst the articles in dispute there was a thrashing machine, placed inside one of the barns (the machinery for the horse being on the outside) and there fixed by screws and bolts to fouf posts which were let into the earth. The Court decided that the thrashing machine being so annexed to the land passed by the conveyance. • The only difference in this case is that the machine is affixed by screws and bolts to the wall of the barn. Ifc was said iv Holland .. Hodgson " that Will- . shear v. Cottrell aud Walmsley v. Milne seem to be authorities for this principle, that where an article is affixed by the owner of the fee, thongh only affixed by bolts and screws, it is to be considered as part of the land, at all events where the object of setting up the article is to enhance the value of the premises to which it is annexed for* the purposes to which those premises ara applied. The thipshing machine in Willshear v. Cottrell was affixed by the owner of the fee to the barn as an adjunct to the barn, and to improve its usefulness as a barn, in much the same sense as the havcutter in Walmsley v. Milne was affixed to- "the stable as an adjunct to it, and to improve its usefulness as a stable." It is difficult to say that the machinery here is not as much affixed to the barn as' an adjunct to it, and to improve the usefulness of the barn, as such, as . either the threshingmachine in Willshear v. Cottrell, the haycutter in Walmsley v. Milne, and the machinery in Mather v. Fraser. And the latter case was mentioned in the judgment of the Exchequer Chamber in Holland v. Hodgson as the leading case. lam of opinion therefore that the. machinery passed by the conveyance, and the judgment must be for the defendant with costs. j