76 127 Farmers' Loan & Trust Co. v. Borough of Ansonia, Farrell v. Winchester Avenue R. R. Co., Fayerweather v. Monson, 89 175 25 235 1 Longworth v. Meriden & Waterbury R. R. Co., . Loomer, Bray v.. Mallory v. Mallory Wheeler Co., Mallory Wheeler Co., Mallory v. Manresa Institute v. Town of Norwalk, Mascolo v. Montesanto, McElligott v. Randolph, Meriden & Waterbury R. R. Co., Longworth v. 451 Metropolitan Life Ins. Co. v. Fuller, Monson, Fayerweather v. 431 Montesanto, Mascolo v. Morris v. Bulkeley, . 50 287 387 Narramore, Beers v. Nettleton, Downie v.. 13 593 New York, N. Haven & Hartford R. R. Co., Rowland v. 103 Norwalk (Town of), Manresa Institute v. O'Brien, White v. Olmstead, Whalen v. Orcutt's Appeal from Probate, Peck v. Hooker, Peck, Stow & Wilcox Co. v. Atwater Mfg. Co.,. 228 34 263 378 413 31 157 270 154 Rockville Nat. Bank v. Walker, Rowland v. N. York, N. Haven & Hartford R. R. Co., 103 Security Co. v. Town of Hartford, . Shelton Co. v. Borough of Birmingham, Simmonds v. Holmes, . CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF ERRORS OF THE STATE OF CONNECTICUT. GEORGE W. SIMMONDS vs. JOHN E. HOLMES. New Haven & Fairfield Cos., Jan. T., 1891. ANDREWS, C. J., CARPENTER, LOOMIS, SEYMOUR and TORRANCE, JS. It is provided by Gen. Statutes, § 3757, that "all dogs found doing or attempting to do mischief, when not under the care of any person, may be killed." In an action for the killing of the plaintiff's dog the defendant set up as separate defenses, 1st, that the dog at the time was doing mischief, and 2d, that he was a stray dog and running at large. Held that, regarding the second defense as equivalent to an allegation that the dog was not under the care of any person, yet as neither was a good defense taken by itself and it required both taken together to make a legal defense, the pleading was defective. But that the defect was waived by the plaintiff's taking no exception to it. It is not necessary to make a case of a dog doing mischief within the stat ute, that he should be attacking an animate object. Nor that the mischief should be done, or attempted to be done, with his teeth. In the present case the dog was lying asleep upon a bed of young plants in the defendant's garden and seriously injuring them. Held to be a case of mischief within the meaning of the statute. And held that the right to kill the dog was not affected by the consideration of its value as compared with the value of the property destroyed or injured. Section 3755 of the General Statutes provides for a civil action and a criminal prosecution in the case of the killing of a registered dog, unless in defense of life or property. Held not necessary to a justifiable killing under section 3757 that the dog should be an unlicensed one. Where an error in the charge of the court, which appeared in full in the record, was assigned only as all the charge beginning with a certain (1) VOL. XLI.-1 Simmonds v. Holmes. clause and ending with another, it was held not to be a sufficient assignment under the rule (Rules of Practice, ch. 14, sec. 1,) that the precise matters of error must be set forth. [Argued January 23d-decided June 1st, 1891.]. ACTION for damages for the killing of the plaintiff's dog; brought to the Court of Common Pleas in Fairfield County. The court (Perry, J.,) having overruled the plaintiff's demurrer to a part of the defendant's defenses, the case was tried to the jury, who returned a verdict for the defendant. The plaintiff appealed on the ground of errors in the charge of the court. The case is sufficiently stated in the opinion. J. C. Chamberlain, for the appellant. 1. Whatever may be the proper construction of the statute under which the court undertook to charge the jury, the pleadings give no opportunity to examine it. No issue under that statute was raised by the pleadings, and no claim of counsel made in argument can raise such an issue, or justify a charge upon an issue not so raised. The third defense is the only one that raises the question of killing to prevent injury, and that states the common law defense only. The reply of the plaintiff met that defense and the requests to charge were based solely on that issue. The court had no right to charge the jury upon a defense not raised by the pleadings. Hilliard on New Trials, 367; Wilcox v. Chicago, Mil. & St. Paul R. R. Co., 24 Minn., 209. 2. The charge is also wrong for the reason that no facts were claimed by the defendant that would justify any allusion to the statute, even if it is to be strictly construed. The utmost claimed by the defendant was "that this dog at the time he was shot was lying asleep upon a few lettuce plants." The fact that the dog was "out of the care of any person and doing or attempting to do mischief," was not in any way pleaded, claimed or proven, and no charge should have been given based upon those facts, as it is well settled law that a court should never charge a jury upon supposed |