
    Gates against Lounsbury.
    When an act is lawfully done, it can-unlawful™"^ initio; unless, tive act in^tMhe’exerright'to ‘do the first act. tention of do act, is notsufficient to render the first actThoughUl’a Plca of moiuter manus zmposuit may J8ssa^,atism> answer a ing, bruising, m°treating"he pl¿sl^here t0 an action for assaulting, beating, brui- and^m defendant ^hniff" ‘to prevent him from taking the defendant’s horse out of his possession, &c. The plaintiff replied, that the horse was wrongfully in his close, damage fea~ sant9 and he was-leading him out of the close, towards a certain pound, with intent to impound him* as a distress, &c. as he lawfully might do; and thereupon the defendant, deson tort, committed the trespass, &c. The defendant rejoined, that the plaintiff was leading the horse towards the pound, with intent there to impound him as a distressi before he had made application to the fence-viewers of the town, to ascertain and appraise the damages, &c., as by the statute he was required to do, whereupon the plaintiff was a trespasser, ab initio, &c.; "Held) that the rejoinder was bad, on demurrer.
    IN ERROR, to the Common Pleas of Madison comity. Gates brought an action of assault and battery, &c. against WiTliam Lounsbury¿ in the Court below. The declaration was for an assault and battery, in striking, beating, bruising, and wounding the plaintiff. _
    The defendant pleaded, 1. Not guilty. 2. A special plea in bar, as to the assaulting, heating, bruising, wounding, and ill treating the plaintiff, actio non, &c„ for that the defendant, before and at the time, when, &c. was the servant of James Lounsbury, and had the care of keeping the colts" and horses of the said James, and that the said James, at the o • . time, when, 8¿c. was lawfully possessed of a certain colt or horse, and that the" plaintiff, just before the said time, when, • Sic. to wit, on, &c. unlawfully, and with force and arms, at-3 ~ tempted to take away the said horse or colt; and, thereupon, the defendant then and there requested the plaintiff to desist therefrom, which he refused ; whereupon, the defendant, at the request of the said James, in defence of the possession of the said horse or colt, quietly la-id his hands upon the plaintiff, to prevent him, 8¿c. which are the supposed trespasses in the declaration mentioned; concluding with a e . verification-
    
      Replication to the second plea, that long before, and at the said time, when, &c. the plaintiff was lawfully possessed of a certain close, situate at, &c. in, &c.; and because the said horse or colt, mentioned before, and at the said time, when, fac. was wrongfully in the said close, eating and depasturing the grass of the plaintiff, there growing, and doing i i i.ort* i „ t . , ? damage to the plaintiff, he, the plaintiff, at the said time, when, &c. seized the said horse or colt, in the said close, so doing damage, as a distress for the said damage, and was then and there leading the said horse or colt out of the said close towarc^s a certain pound in the aforesaid town of, &c. with intent to impound or keep the said horse or colt as a distress, to obtain satisfaction for the damage done by him, as aforesaid ; and thereupon the defendant, at the said time, when, &c. of his own wrong, committed the said several trespasses, in manner and form as the plaintiff hath declared; concluding with a prayer of judgment.
    
      Rejoinder. That after taking the said horse or colt, as aforesaid, by the plaintiff, he, the plaintiff, was leading or driving away the said horse or colt, towards a certain pound, in the said town of, &c. with intent there to impound him as a distress, before he had made application to the fence-viewers of said town, to ascertain and appraise the damages, 8zc. as by the act relative to the duties and privileges of towns, he was required to do; whereupon the plaintiff was a trespasser from the beginning; concluding with a verification.
    To this rejoinder, the plaintiff demurred, and the defendant joined in demurrer. The Court below gave judgment, that the rejoinder was good and sufficient, and a general judgment against the plaintiff for costs. On this judgment, a writ of error was brought to ttiis Court; and the cause was submitted to the Court without argument.
   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 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.  