1863. York Spring Assizes. Where two prisoners are Coram Keating, J. REGINA v. THOMPSON AND SIMPSON. THE prisoners were indicted for stealing a sheep at tried for a joint Conisborough near Doncaster, the property of Mr. George offence, and one pleads guilty, and it was proposed to call the wife of the prisoner who had pleaded guilty on the part of the prosecution to give evidence against the other prisoner, KEATING, J., held, that he should admit reserving a case for the opinion of the Court of Criminal Ap peal, if neces sary. Walker. The prisoner Thompson pleaded guilty. Maule appeared for the prosecution. Campbell Foster for the prisoner Simpson. It appeared that on the 24th of December previous, Mr. Walker, the prosecutor, had 141 sheep in his field which he counted on that day. On the 29th of December he counted them again, and missed one. The prisoner the evidence, Simpson was met on the 27th December walking towards the field in which the sheep were, and the same day he was also seen carrying a tub with some salt in it. After the sheep was missed Thompson's house was searched and some mutton was found in it salted in this tub. There was a further piece of evidence against the prisoner, which could be proved by Thompson's wife, but without his LORDSHIP's sanction the learned counsel for the prosecution said he would not state it, as there might be some question about the admissibility of Thompson's wife as a witness. The prisoner Thompson having pleaded guilty, he should propose to tender the wife as a witness. The learned counsel referred to Webb's case in Taylor on Evidence (a), "where four men were indicted for sheep stealing, Mr. Baron BOLLAND rejected the testimony of the wife of one of them who was called to prove facts against the other prisoners." This case was, however, distinguishable from that, inasmuch as Thompson having pleaded guilty, he was no longer an interested party on the record. Webb's case (a) Vol. 2, p. 903, s. 991; and see Roscoe's Cr. Ev. p. 143, 4th ed. was said to be on the verge, and in the last edition of Taylor on Evidence, it was stated that where there was no interest in the wife of a prisoner, or where he was no longer on the record, her evidence would seem to be admissible. The objection of interest could not then exist. With his LORDSHIP'S sanction he should therefore propose to call the wife of Thompson, as a witness for the prosecution. Campbell Foster submitted that a strong motive of interest might still influence the wife, the hope that by casting-unjustly it might be all blame on the other prisoner she might thereby influence his LORDSHIP's judgment in passing sentence on her husband. Such evidence would be untrustworthy. KEATING, J., said, that went to the credit of the evidence, not to its admissibility, and he thought that, inasmuch as on the issue to be tried the woman's husband was no longer interested, she was admissible as a witness. If necessary, he would take care that the opinion of a Superior Court should be taken on the point. The case then proceeded, but it appearing that the sheep had never been counted between the 24th and the 29th of December, his LORDSHIP was of opinion that the evidence against the prisoner was insufficient on this ground, and directed An acquittal. The other prisoner's wife not having been called. 1863. REGINA v. THOMPSON and SIMPSON. 1863. Berks Summer Assizes. mons having issued against OXFORD CIRCUIT. Abingdon; Civil Court: coram Martin, B. KELLY v. LAWRENCE AND ANOTHER. A writ of sum- ACTION by Michael Kelly for false arrest and imprisonment under a certain pretended writ of ca. sa. issued under the false and unfounded pretence, that the plaintiff was the person mentioned in such writ. A. C., and served on B. C., who took no steps to have writ or service set aside as irre gular, and did allowed the Plea that one J. K. sued out a writ of ca. sa. against the now plaintiff, by the name of Ignatius Kelly, &c., to nothing; but satisfy the sum of, &c., recovered against the plaintiff by the name of Ignatius Kelly, &c., which was the writ in the declaration mentioned, and that the defendants as sheriffs, &c., by virtue of the said writ (a), took the plaintiff, &c. Issue. plaintiff to proceed to enter an appearance against him in the name of A. C., and sign judgment by default, on which a ca. sa. issued against him in that name, upon which he was taken: held, in an action for such ar rest, that he was the defendant in the original action, having been served; and that the judg ment was re covered against him by a wrong name; and that therefore a plea of justification to that effect was proved. Huddleston and J. O. Griffits, for the plaintiff. Pigott, Serjt., and Gray, for the defendants. On the 28th of April, 1863, the plaintiff was served with a writ of summons at the suit of J. K., addressed to Ignatius Kelly. He told the process server that his name was Michael, and not Ignatius (b); and that he was not the man against whom the writ was issued (c), and knew nothing of the matter (d); and that he should not take (a) Lucas v. Nockells, 10 Bing. plaintiff was taken under the writ, matter of law upon admitted facts. (b) It turned out that this was so in fact, but is a process server bound to believe what the party tells him; and even if he is, is he bound to determine that the writ was not intended to be directed against such party? (c) How could he know that, and how could the process server be bound to take it for granted on his statement? (d) Was the process server bound to believe this? any notice of the service (a); but the person having the writ said he should serve it, and did serve it; and upon (a) That a party served may apply to quash the writ as irregular, without stating that he is the defendant, vide Stevenson v. Thorne, 13 M. & W. 149; where the reason given was, that the party served is the defendant for such purposes; i. e., for applying to set aside proceedings as irregular; and so, where there is merely an attempt to serve, or an irregular service by leaving the writ at his house; King v. Hopkins, ibid. 685. There the writ was irregular, and it was not necessary to take notice of the irregularity of the service; but that it was only irregular, and that, therefore, on the principle of all the cases, it would have been necessary, had the writ been regular, to apply promptly to set aside the service, seems self-evident; vide Alsager v. Crisp, 9 D. P. C. 353; Brooks v. Roberts, 1 C. B. 636; Hardwick v. Wardle, 4 D. & P. 779; all which cases and a host of others establish that, in a case of irregularity, the application to set aside must be to set aside the first step, which was irregular. The question is, therefore, whether this was a case of irregularity? For if so, it clearly was an irregularity either on the writ or service, and there ought to have been an application to set aside writ or service. Whether the writ was irregular would depend probably on whether it set forth, or purported to set forth, the place of the residence or supposed residence of the party named in the writ, i. e., Michael Kelly; one reason for refusing which probably is to indicate the right party and prevent this very kind of mistake; and no doubt, though of course the truth of the description is not an irregularity, unless on the face of the writ it is impossible that it can be true, the omission or insufficiency of the description would be ground for setting aside writ and service; Cotton v. Sawyer, 10 M. & W. 328; Windham v. Fenwick, 11 M. & W. 102; King v. Hopkins, 13 M. & W. 685; and a party named, but not even served, in the latter case, was held entitled to make the application; while the case first cited shows that the party served, though not rightly named, was equally entitled. The mere misnomer, or mistake in the name, would not even be an irregularity, so that the party served could not apply on the ground that the writ was irregular. It is more than probable that the process server was misled by the description of the now plaintiff's address being in the writ, and if so, then there was an irregularity, which the plaintiff was bound to set aside at once, and his not doing so, and relying on his mere assertion, which no one was bound to credit, caused the appearance to be entered for him as the party served and sued (assuming himself to be the party meant) on that ground. And the question would be, whether the service is irregular, that is, whether it is irregular to serve Ignatius Kelly with a writ addressed to Michael Kelly. Assuming Igna. tius to be intended, which he at all 1863. KELLY v. LAWRENCE and Another. 1863. KELLY V. LAWRENCE and Anotber. such service the action proceeded to judgment, the now plaintiff having taken no notice of the service. events, as the above cases show, is entitled to assume, then it should seem that the service would be irregular, even if the writ were not, or possibly both writ and service would then become irregular. The question is, whether, being entitled so to assume and so to proceed, he is bound so to do. It should seem that he is, because if a step is irregular it cannot be also a nullity, at the option of the party, at any distance of time, for that would lead to obvious injustice and inconvenience. And, moreover, it cannot be known, until the writ or service is impeached, whether or not the party served is intended to be sued, as he may be after all, and it would be impossible to take his word that he is not. The case has often happened of the right party pretending to be the wrong party, in order to avoid service; Burrows v. Gabriel, 4 D. & L. 107; and the process server has been allowed to delay his indorsement of service in consequence. One way of testing whether it is a mere irregularity is this: to put the case of the judgment having been recovered against the wrong party, without any service at all. Now that, it has been held, over and over again, is only an irregularity; and therefore the party, coming to set aside proceedings after judgment by default, must swear that he had no knowledge of the proceedings; Emerson v. Brown, 7 M. & G. 476; Brough v. Eisenberg, 7 D. & L. 338; Minet v. Round, 1 D. & L 634; Holmes It v. Russell, 9 D. P. C. 487. seems not easy to see how a party who has been served should be in a stronger position than one who has not. A mistake in the name, if anything, is only an irregularity, for appearance in the right name cures it, and in the wrong name waives it; Dunn v. Hodson, 1 D. & L. 204. The appearance, therefore, by the now plaintiff as "Ig. natius," or as " Michael," would have cured the objection; and his merely doing nothing, and taking no notice of the writ, could hardly put him in a better position; for time and laches would equally be a waiver of a mere irregularity. On a summons to set aside the writ and service, and on affidavit by the party served that he was wrongly described, the plaintiff would have time to elect either to amend the writ into the name of the party served, in which case, of course, he would have had to declare in that name and prove his liability; or he must have avowed the mistake and assented to have service set aside. If he took the latter course all further costs would be saved; if the former, he would have righteously had to bear the penalty of paying all the costs of trial, failing to prove any liability against the party served. Of course the Judge would not try the question of liability on affidavit on a summons, and would take the plaintiff's own word for it, whether or not he intended to sue the party served, notwithstanding his true name was sworn to. And, no doubt, if the |