A POINT OF LAW.

Waipawa Mail, Volume XXXVI, Issue 7710, 20 April 1916, Page 3

A POINT OF LAW.

iffHEN IS A MAN ON ACTIVE w SERVICE? mpORTANT JUDGMENT. At U*t week’s sitting of the MagisIrste's ( ' ourt Waipawa a case was Imenti'"'.'' w k>ek involved an import|t legal point, as to whether a man P! | lll( | enlisted could he sued for a Evil debt- Arising out of this point p . pother, as to when a man actur ven t on active service, when he Lnteied camp or when lie left the Eviminioti. case was E. 0. Roach t”C M Burley, a claim for £4B in r' r , of goods alleged to have been Hold and delivered by plaintiff to CJendsnt. Mr Strang ap|>eared for |T plaintiff and Mr Wedde for the Cfenilant. Mr S. E. McCarthy’s fcdffimiit was read at the Court this BtpnHHtn hy Mr Baker, clerk of the Eittrt. Tli«* lull text is as follows: HEAD NOTE. I A member of an Exjiedit ionary L on ,. within the meaning of the Expcdition.'iry Forces Act, 1915, is, Ceri when on active service, so long L he remains in New Zealand, in re|Vt 0 f civil ohligations, liable to ■he Mine process as civilians, so long C the execution of such process will E)t prevent such member fulfilling Eg Imperial obligations. He does not Eton)* l subject to the Imperial Army E excepting provided hy Section E of the Expeditionary Forces Eft 1915, until he is outside the Efntonal limits of this Dominion. E n ing a member of an Expeditions' Foree in respect of a civil obligaWL recoverable in a Magistrate’s Egrt, the procedure of that Act and lot of (lie Imperial Army Act is to be Hallowed. THE JUDGMENT. I The rase was heard on the 13th of Epril. when judgment was re■rred.ami i' m»w given ns follows: (The plaintiff is a storekeeper and E defendant a private in one of the Eafoirenimds of the Dominion’s Hx■editionarv Korees now in camp withE t he Bon,inion. There is no proof Etlir publication of a military order Epinf/ the Fxpeditionary Force of Bhirh defendant is a member, for EharkatK'i). ■ The contention for the defendant is Ek having enlisted, directly he Bent into camp lie was a member of E t Imperial force on active service, Ej therefore subject to the Army ■ 58. Now, section 53 of this DoBilions Constitution Act (15 and 1(>, Bit.,C'7-1 confers on its Legislature Ever to make laws for the peace. Hdtr, and good government of New HaUnd, provided that no such laws Hppnpnant to the laws of England. ■ the Amended Constitution Act. Hi)and -1 Viet., (' 53) power is given Hthc Legislature from time to time Hliter, susjM’iid, or repeal all or any Horuions of the principal Act, in Haling wet ion 53. The raising ol Him for the defence of the DominH. or of the Empire generally, is n Htter within the jurisdiction of our Hpdature. If. then, statutory prnHn»fh reliiim t.» defence have been Hssel hy our Legislature, they will. Hthin our own territorial boundaries, Hnridc any provisions of the ImHnil Lgisln! ure mi tlie same subject |Httcr. Our Legislature has passed a iHfnre Act, 1909, and its several .Hndnents, and the Expeditionary Arcs Art, 1915. Section 2*2 of the iHner Act provides that no part of |H Territorial Force shall be carried .■ordered to go out of New Zealand. iHtion L’ti, however, provides that it >Hll lie lawful for the Governor to ,Hpt offers from members of the iHrhtorial Force to serve in any •Hff outside Ni w Zealand. Section ■ latter Act gives the Governor I Htcr. during the present war, to H* by voluntary enlistment an ExAhlionarv I'np • for service outside H Dominim, with, or in aid of His forces. This foree is to he hßt of the defence forces of the |Hunion (section 5). |HU Expcditioiinrv Force shall lie ■ tori to Ih* on active service (a) at I turns while out of New Zealand, eHshile in New Zealand in the iniHal iM’tweeu the publication of a IfHitarv unit r warning them for cm ElHkatiMii, and their actual departure Nf* Zealand. Seetion 17 mainly t«. olTenees, and the trial and of «»:T«-iie#-s. Suh-seetion that section i- to he construed ItHpft to the proMsions of sub-sec - Ai opinion memhers of an Ex- ■ pionary Force do not become sub I tw the Emrlisli Army Act until >rc outside the Dominion, ft they remain in the Dominion I >re subject t<» the Defence Act Expediti-mary Forces Act. ‘>'JtMde the Dominion tliev be"M* !h.- provisions of the I military law. When they |jH« wtive serviee inside the Dot|,*‘in d'e ii" aning of section • are only subject to the ImjierAct in respect of offences Military discipline. n "l'ts of tlu ir creditors to re a^^H*Judgmoi!i are. whilst tliev are in I ■ Dominion, governed by the ordin-1 If, however, a creditor out a process against I I^H^hcpof an 1> p. dit ionary Foree. H which will render for that member to fuloWigati„„ s |,, ||,c Empire, it nwT ssar\ to rule that the in- ’ ‘A***"* ll "' *'' ,l, pire are paramount of the individual. This "W? »* reasonably said of a in respect ~f an ordinary issuiiej out of the MngisA™'* w 'll he recorded for the JK' f or tlie amount claimed, tor"s<s as on a defended