SOLDIERS' LIABILITIES.

Taranaki Daily News, 7 February 1917, Page 3

SOLDIERS' LIABILITIES.

SCOPE OF AEMY ACT. A DECISION QUESTIONED. A case of considerable interest' to members of the New Zealand Expeditionary Force and their creditors was brought before Mr. Justice Edwards in the Supreme Court yesterday, when Thomas McLellan, a member of the Ne\v\ Zealand' Expeditionary Jurce, applied for an order, declaring certain civil proceeding's in the Magistrate's Court irregular, and prohibiting further action.

It was explained that H. B. Fitzherbert, a farmer, of Moeroa, had proceeded against jV[cLcllan in the Magistrate's Court at Ettuam, alleging the conversion of sheep, and claiming'£llo damages. The case 'was adjourned on several occasions, in order to give McLellan an opportunity of obtaining leave from camp to appear, until the Magistrate decided that to more adjournments would be granted. McLellan was served while he was at Trcntham. The case was heard on December (i, when Mr. Stewart, who then appeared for McLellan, raised the question of jurisdiction, claiming that under Section of the Imperial Army Act it was necessary, on issuing a summons against a soldier, that an affidavit must 'lie filed, stating the amount claimed. It was argued that as McLellan was a member of the Expeditionary Force, he was, by reason of the provisions of the Defence Act and the Expeditionary Force Act, subject to military law as established by the Imperial Army Act. It was stated, further, that the affidavit had not been filed.

Mr» T. B. Crump, who appeared for Fitzherbert, contended before the Magistrate that there was no proof that McLellan was a member of (he Expeditionary Force, and that if he were a member, Section Wll of the Army Act did nob apply to this case. The section was only applicable to members of the New Zealand Expeditionary Force so far as it. related to offences, discipline, and courts-martial. Moreover, he contended that the affidavit referred to was only required in the case of an interlocutory process, such as * writ of arrest, where the amount of the claim had not been adjudicated upon by the Court, and it was not required at the beginning of an action. After hearing the case, the Magistrate gave reserved judgment on December 12 for Fitzhcrbkt for £l)s. After hearing argument By counsel on both sides, Mr. Justice Edwards reserved his decision.

Mr. .1. C. , Morrison appeared for McLellan, and Mr, T. B. Crump opposed.