SUPREME COURT.

Taranaki Daily News, 27 February 1917, Page 7

SUPREME COURT.

A SOLDIER'S LIABILITY,. Ip important judgment. Reserved judgment lias been delivered by Mr. Justice Edwards iu the case of Ihomas McLennan v. VV. R. Haselden, 8.M., and H. R. Fitzherbert, a motion [or a writ of prohibition to restrain the defendant 7rom proceeding further on a judgment pronounced by the Magistrate iu lavor of Fitzherbert, in an action in which Fitzherbert was plaintiff and Mclennan was defendant. The motion tvag heard at the last sitting of the /Supreme Court in New Plymouth. The nctiu.i referred to was for the recovery of £111) damages for alleged wrongful conversion of certain sheep. The suit was commenced on September S, IUIG, mid general adjournments were obtained on tiie ground that plaintiff was a member of the .Expeditionary forces and could not attend the Court. On De. cember li the Magistrate declined further adjournments, and the plaintiff's solicitor then objected that the Magistrate nad no jurisdiction to deal with the tase, upon the ground that Section 144 of the imperial Army Act, 1881, was incorporated in The Defence Act, and that the plaintill as a member of the Expeditionary Forces was therefore entitled to the benefit of Section 144; that the claim pf the defendant Fitzherbert was not proved for the purpose of the summons by affidavit, as required by sub-section i of that section, and that, therefore, under sub-section 5 the proceeding was void. The Magistrate reserved his decision upon that poiut, and proceeded to hear the case upon its merits. In a reserved judgment, the Magistrate overruled the objection to his jurisdiction, upon the merits entered judgment for the plaintill' Fitzherbert, now defendant, for the sum of £95 and coats. His Honor, in lib judgment,, quoted (Section 114 of the Imperial Army Act, which exempts a soldier from being taken from the service, by process, execution, or order of any Court of Law. That section was not applicable to the defence forces of New Zealand by Section 14 of the Defence Act Amendment Act, 1912, which merely brings the defence forces .within the disciplinary provisions of the Army Act. It does not, and could not, make the defence forces part of the regular forces of the Crown tvitliiu the meaning of the Imperial Army Act, and therefore Section 144 of that Act does not apply to them. The defendants must, therefore, have judgment in the action, -with costs on the lowest scale to be paid by the defendant Fitzherbert.

Mr. J. C. Morrison appeared for plaintill', and Mr. T. B. Crump for the defendant Fitzlierbert,

SUIT FOR -PiXTFIC PERFORMANCE. In the case of James Alexander Bos. well v. Sarah Ann Reid and others, a motion under the provision of. The Mortgages Extension Aet, 11)14, for leave to sue for speciiic performance of a contract for sale and purchase of certain land, Mr. Justice Edw-ds dismissed the motion without costs. The sole ground upon which the motion was based was that default had been made in payment of the residue unpaid of the purchase money covenanted to be paid under the contract for sale and purchase. The motion was resisted on the ground that the provisions of the Act did not apply to actions for specilic performance, and that the motion -was therefore unnecessary. His Honor decided that this contention was erroneous, and that the case came very clearly within the provisions of Section 7 of the Aet of 1014. He however decided that as the sole ground for the application was nonpayment of the residue unpaid of the purchase-money covenanted to be paid Under the contract, applicant had not shown sufficient ground for granting that leave. Mr. J. C. Morrison was counsel for plaintiff, and Mr. Frank Wilson for defendants.