ECHO OF THE WAR.

New Zealand Herald, Volume XL, Issue 12266, 9 May 1903, Page 2 (Supplement)

ECHO OF THE WAR.

YEOMAN'S ACTION AGAINST GENERAL RUNDLE.

STORY OF A FIGHT AND AN ARREST. Mr. Justice Lawrance and a special jury, in the King's Bench Division, heard an action a few days ago, brought by Robert Edmondson, an ex-sergeant of the Imperial Yeomanry, against Major-General Sir Henry MacLeod Leslie Rundle, Viscount Valeutia, Major John Fowle, and Captain James Henry Elisor, to recover damages for false imprisonment. Defendants admitted the arrest, but pleaded that it was not illegal Oi false imprisonment.

Mr. Broxholm, for plaintiff, said Edmon-son-for ten years and a-half served in the 21st Hussars, and he rose to be sergeantmajor. Having come into a little money, plaintiff obtained his discharge, but when the Boer war broke out he volunteered, and was made squadron serfeant-major of the 35th Company Middlesex Yeomanry, and went to South Africa, At Senaehar his corps, which was attached to General Clements' Flying Column, consisting of 600 of Brabant's Horse and detachments of the Middlesex and Staffordshire Yeomanry, was led into a Boer trap by a Dutch guide. As it was believed there were no Boers in the neighbourhood they had been told to disregard their own rear, which was vulnerable to attack. This was in July, 1900, and. at dawn a shell at the immediate rear exploded. It Hashed across everyone that they were in a Boer trap, but, whether that was so or not, the Dutch guide bolted. Orders were issued for the men to gallop over the hill to shelter, and Captain Mildmay, M.P., who was in command of the troop, Made for a kopje. By this time the Boers had almost surrounded them, and plaintiff had to make the best of his way through a very.hot lire. Edmonson collected twenty of his men, and all but three succeeded in getting through. The three were made prisoners, and detained until the surrender of Prinsloo, when one of the three was given a commission. Plaintiff made his way to Ventersburg, and on reporting bimiseff to Colonel Sitwell was placed under arrest, by Major-Gene-ral Bundle, who was in command of the district. Under the King's regulations plaintiff ought to have been tried within forty-eight hours, but no such trial was made, and" three days afterwards plaintiff was removed to Kroonstad, and subsequently to Harrismith. It was true that defendants held a court of inquiry, but that was not a trial in accordance with the King's regulation:?, to which plaintiff was entitled. Edmonson in all was detained in custody for a period of eight months, when he was degraded to the ranks and left the army. Except on a charge of cowardice the arrest was absolutely illegal and unjustifiable, and if the charge had been that of cowardice plaintiff should have been immediately tried by court-martial, and, if found guilty, should have been shot. Sergeant-major Edmonson constantly complained that he was illegally detained, and he was not finally released until February 5, 1901. He now stood as a convicted man, without having been tried, and without knowing what his crime was. It was time that on three separate occasions plaintiff deliberately broke his arrest for the purpose of obtaining a trial of some sort, but without result. In these circumstances he asked the jury to say, by their verdict, that a man who gave his services to his country was as justly entitled to have justice meted out to him as the most ordinary and common civilian. Mr. Robert Edmonson, plaintiff, was then called, and gave evidence bearing out counsel's statement.

Colonel Sitwell, of the sth Northumberlnad Fusiliers, said at the time of the Lilliefontein engagement he was in command of the Ventersburg Road Station. A statement was made tosim by plaintiff on which he telegraphed to General Kelly-Kenny, commanding the Bloemfontein district, and General Knox, that Colonel GrenfeU'fl flying column had been surprised and touted. Plaintiff might not have actually used the Avoid "routed," but that was what his statement conveyed to him. Ou General Kelly-Kenny's instructions, he afterwards placed the plaintiff under arrest. A Court of Inquiry was held to obtain evidence as to plaintiff's absence from his company, and as to his having reported that the column had been routed when it was not routed, and which was calculated to spread despondency. He did not agree that after 48 hours' arrest a man should be released if no charge was reported to him. The usual procedure was to adjorn the inquiry. There was abundance of evidence, but it was many miles away, and active operations were going on. against the enemy all over the held 01 war.

The Attorney-General for the defence submitted that there was no cause for action. It was the case of a soldier in 'the field on. active service, and he contended that no action could be brought in a Civil Court to review the conduct of the officers in command in the field in the circumstances stated. Sir R. Finlay then cited a number of authorities to prove that a Court-martial was the only remedy the plaintiff had, and that, even if malice were alleged and proved, an action would not; lie. Apart from the cases cited, he submitted that it would be contrary to public policy to hold that any civil action could lie against a military officer lor any act in the field while warwas waging. "Otherwise there would be an end to all discipline.in the army. A further objection was that under Section 170 of the Army Act, 1881, proceedings should have been taken within six months of the termination of the arrest.

Mr. Broxliolm contended that Section 170 of the Army Act clearly contemplated the bringing of "such an action as this. V\'a~it to be said that plaintiff, who 'iad vainly endeavoured to have his grievance investigated, had no remedy whatever? Mr. Justice Lawrance, in giving bis decision, said the fact that war was actually raging made all the difference. It would be contrary to every principle of public policy that the orders of persons in command while war was raging should be investigated in Courts of Justice. Not one of the cases brought to his notice on behalf of plaintiff was a case in which active warfare had been going on at the time. The only remedy was court-martial. If plaintiff had not got redress that was his misfortune. It was one of the hard necessities of war that witnesses were not available and that the inquiry had consequently to remain in abeyance. It was clear that it would have been impossible to hold the inquiry, and judgment must be entered for defendants with costs.

A stay of execution was refused.