Mossman v. Bostridge

76 Vt. 409 | Vt. | 1904

Rowell, C. J.

This is trespass for killing a dog. The second plea, which follows the general issue, attempts to justify, and alleges that “on the day and date of the said supposed killing of said dog, said dog was by the defendant found pursuing, hunting, and chasing wild deer.” To this plea the defendant demurs generally, and objects that it is insufficient because it does not confess a cause of action. Without considering whether the objection can be taken advantage of ora general demurrer, it is clear that the plea gives good color in the words, “the said supposed killing of said dog,” and consequently sufficiently identifies the trespass attempted to be justified with the one declared upon.

Baron Parke says in Earnstaff v. Russell, 10 M. & W. 365, that there can be no doubt whatever that the word supposed is a sufficient admission of a cause of action; that it is-the usual mode of pleading; and that he had seen instances without number where, after the general issue, a special plea followed professing to answer the supposed cause of action ira' the declaration mentioned. The word supposed is equivalent to alleged, and a sufficient admission of a cause of action. Note to Gould v. Lasbury, 1 C. M. & R. 254, Hare and Wallace’s ed; Martin, Civil Proced. § 290.

The statute provides that any person may lawfully kill any dog found hunting deer. Sec. 3, No. 108, Acts of 1898. But the dog must be killed while thus hunting, and the plea is bad for not so alleging. We do not construe the statute to1 require, in order to' warrant the killing of a dog found hunting deer, that the dog must be of the breed or variety named’ in the statute, nor that the owner or the harborer of the dog must have permitted it to run at large in the forests where deer inhabit. Those provisions relate to the penalty of the statute, and not to the right to kill a dog found hunting deer.

Judgment reversed, demurrer sustained, plea adjudged insufficient, and cause remanded.