| Vt. | Jan 15, 1839
At the last term it was decided that the defendant, having found the horses in his meadow, lawfully turned them out; and the plaintiff could not recover, as the damage, if any, was owing to his own neglect, in not restraining his horses within his own enclosures. Let us now inquire whether the case was essentially changed by the proof on the last trial.
It was shown that the fence, through which the horses escaped into the meadow of the defendant’s father, was a partition fence, which it was as much the duty of the plaintiff as the other parry to repair. 'The horses, then, escaped by the plaintiff’s fault, as it was not the exclusive duty of the other party to maintain the fence. Horses are not commonable beasts, and to them, in this state, the common law applies — that is, the owner must fence them in, others are not bound to fence them out. The plaintiff’s testimony tended to prove that the defendant acted with improper motives. This can never alter the character of a lawful act. Whatever a man has a legal right to do, he may do with impunity, regardless of his motive.
It seems the defendant started the horses off north. It is difficult to see, as the court have decided that he had a right to turn off the horses, why he must not turn them off in some direction, and it certainly would not do to hold that the issue should be made to turn on the point, that if he does not turn them in that direction of compass, least likely to injure the owner, it renders the whole unlawful. There was nothing in the nature of this act which amounted to a conversion of the property, or came within this action. It was but á part of the testimony which tended to show the defendant’s motive, and falls with that.
Judgment affirmed.