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Gates against Lounsbury
Spencer, Ch. J.
delivered the opinion of the Court.
We are of opinion, that the judgment of the Court below is erroneous in two respects. The rejoinder attempts to put in issue a fact not triable, the intent of the plaintiff to impound the horse in the pound of the town, or public pound, before application was made to the fence-viewers, to ascertain and appraise the damage. If that intent had actually existed, at the time of taking the horse, it was revocable. The plaintiff had a perfect right to change his intention at any time before the horse was actually placed in the public pound. The taking the horse, is admitted by the replication to have beén lawful. The illegality of that act, depended on the subsequent conduct of the plaintiff, in
[429] putting the horse in a public pound, before the damages" were appraised. (10 Johns. Rep. 258.) When an act is legally done, it cannot be made illegal ah initio, unless by some positive act, incompatible with the exercise of the legal right to do the first act. (11 Johns. Rep. 241. 14 Johns. Rep. 46.) The mere intention of doing a subsequent illegal act, being, from its very nature, mutable, cannot be substituted for the act.
The plaintiff objects, as he has a right to do, to the defendant’s first fault in pleading. The second plea leaves unanswered that part of the declaration which alleges, that the defendant struck, beat, bruised, and wounded the plaintiff. It alleges, that the defendant gently laid his hands on the plaintiff, to prevent his taking away the horse. The case of Gregory and Wife v. Hill, (8 Term Rep. 299.) and Collins v. Renison, (Sayer, 138.) are in point against the plea. In the first case, the Court said, it was too plain for argument, that though a plea of molliter mantis imposuit would justify an assault, it never was considered any answer to a charge of beating, wounding, and knocking the party down. The case of Collins v. Renison, is equally strong. The judgment must be reversed, and a venire da novo awarded, returnable to the Court below.
Judgment reversed.