Lyons against Martin
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1838 |
| Date | 05 June 1838 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 932
IN THE COURT OF QUEEN'S BENCH
S. C. 3 N. & P. 509; 1 W. W. & H. 500; 7 L. J. Q. B. 214. Principle adopted, Lumpus v. London General Omnibus Company, 1862, 1 H. & C. 535. Considered, Bayley v. Manchester, Sheffield and Lincolnshire Railway, 1872-73, L. R. 7 C. P. 420; L. R. 8 C. P. 148.
[612] lyons against martin. Tuesday, Juno 5th, 1838. A master is answerable in trespass for damage occasioned by his servant's negligence in doing a lawful act in the course of his service; but not so if the act is in itself unlawful and is Dot proved to have been authorised by the master. As if a servant, authorised merely to distrain cattle damage-feasant, drives cattle from the highway into his master's close and there distrains them. [S. C. 3 N. & P. 509 ; 1 W. W. & H. 500; 7 L. J. Q. B. 214. Principle adopted, Lumpus v. London General Omnibus Company, 1862, 1 H. & C. 535. Considered, Bayky v. Manchester, Sheffield and Lincolnshire Railway, 1872-73, L. E. 7 C. P. 420; L. E. 80. P. 148.] Trespass for seizing, distraining, and impounding plaintiff's horse. Pleas, 1. Not guilty. 2. That defendant took and distrained the horse on his close, damage-feasant. Implication to the second plea: that the close adjoined the highway, and that the horse was wrongfully driven by defendant from the highway into the close, and was, by means thereof, damage-feasant there; wherefore defendant of his own wrong seized, &c. Rejoinder, denying that defendant drove the horse into the close. Issue thereon. On the trial, before Coleridge J., at the sittings in Middlesex during this term, it appeared that the defendant occupied land adjoining a highway, and not fenced ; that horses kept by persons in the neighbourhood had sometimes, and shortly before the act in question, trespassed on the land and been distrained by the defendant's servants, and impounded ; that the plaintiffs horse, being on the highway, was intentionally driven from it by a servant of the defendant into the defendant's ground, 8 AD. & E. 813. LYONS V.MARTIN 933 and there immediately seized by the same servant and taken to the pound. The learned Judge was of opinion that, as the act of seizure under these eircumstanees was not within the scope of a servant's ordinary authority, some direct authority from the master ought to be proved : and, this not being done, the plaintiff was nonsuited. Humfrey now moved for a new trial. The defendant's servants had been...
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