AN INTERESTING CASE.

Nelson Evening Mail, Volume LII, Issue 160, 4 July 1918, Page 5

AN INTERESTING CASE.

(United* Proas Association)

WELLINGTON, This IXiy. The. Aupeal Court to-day U honrm'tf a case S. "R. TTitzgetakl v. Colonel MncDonald find othoj*,, a claim oji £3 000. Plaintiff was a s?)ip\s at wnJ, who was drawn in Un> ballot while on a vovagc to S.m Krami.sco and n misted as "a deserted on March 10t,h. 1917 -ind sentenced to 12 months,' imprisonment by 'Court' Alartial, of which Mr K. C. Kirk was a member. Tt is contended that Mr Kirk was not qualified to ait, biiim at the time qn the retired list, and nlso that fiUgeckald was not a deserted and oiilv plena od ftniltv because tin* Court dad not inform him of hk l-icht*.. IK fence 'doiii i that the' Court was not dul\ constituted and even' if so. that the decision wn.« • unanimous jpa not affected by Mr Kirk's presence; also that the action was not s ti\ken within- thre months as prescribed by the Defence Act.

The- 6'ourt >of Appeal, has, by way of preliminary, to hear argument on law.. points involved in the .Mr Oregan "is for the plaintiff 'and the Solicitor-Gena-al and Mr PrendO' ville for the defendant.*. " ;< Mr Oregan contended that the military court acted -without jurisdiction mid in such a* case its acts are ultra vires and can be reviewed by the civil oourt. : ''••■."'. ■. The Soliritor-Genevfl. contended "'that Major Kirk was qualified to pit on > ■'♦"litar.v court, but even if not quali-. fieri, this action would not be."--.,'.'" The court consisted of a siiffiri fit number of, qualified officers. -s<* tint' the nresence of even an tmqualified por<ou would, not nullify the decisions, further, a., man could not .hav ~been felonsed on the application for. habeas; WDUfi as the present defendants had no power tb'-release him,, and ev n if >i« had been too loner pending trial, . l *n.t was, not a ground for an action for damages.