Kelly v Lawrence and Another
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1863 |
| Date | 01 January 1863 |
| Court | Assizes |
English Reports Citation: 176 E.R. 377
Nisi Prius
[826] oxford circuit Berks Summer Assizes, 1863, Abingdon (Civil Court), coiam Martin, B. kelly v lawrence and another. (A writ of summons having issued against A C , and served on B C , who took no steps to have wnt or service set aside as irregular, and did nothing ; but allowed the 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 arrest, that he was the defendant in the original action, having been served ; and that the judgment was recovered against him by a wrong name , and that therefore a plea of justification to that effect was proved ) Action by Michael Kelly for false arrest and imprisonment under a certain pre- (a) Vol 2, p. 903, s. 991 ; and see Roscoe's Cr Ev. p. 143, 4th ed. 378 KELLY V. LAWRENCE 3 F. & F. 827 tended writ of ca sa issued under the false and unfounded pretence, that the plaintiff was the person mentioned in such writ Plea : that one J K. sued out a writ of ca sa against the now plaintiff, by the name of Ignatius Kelly, &c., to 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 thai the defendants as sheriffs, &c , by virtue of the said writ (a), took the plaintiff, &c Issue. Huddleston and J 0 Grimts, 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 waa Michael, and not Ignatius (b) , and that he was not the man against whom the writ waa issued (c), and knew nothing of the matter (d) , and that he should not take [827J any notice of the service (e) ; but the person having the writ said he should (a) Lucas y. Nockelh, 10 Bmg 157, shows that the traverse of this put in issue whdtker in fact the plaintiff was taken under the writ, which in this case, however, was 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 waa 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 ? {e) That a party served ma} apply to quash the writ as irregular, without stating thai 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. Robetts, I C B 636 ; Hard wick v Wai die, 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...
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