Tuller v. Voght. for the consequences, unless the plaintiff had committed the crime of larceny. And he did not by his pleadings offer to prove the truth of the charge. The existence of malice in fact was not necessary to maintain the action. The law raised the presumption of malice, and that presumption was conclusive. The court erred in refusing the instruction demanded by the plaintiff, and in giving the one asked by the defendant. The judgment must be reversed, but the cause need not be remanded. The death of the plaintiff, since the judgment was entered, will prevent a further prosecution of the suit. The cause of action died with the person. The administrator, however, had the right to prosecute this writ of error, to relieve the estate from the payment of an unjust judgment. The judgment is reversed. Judgment reversed. OWEN B. TULLER, Plaintiff in Error, v. CASPER VOGHT, Defendant in Error. ERROR TO JERSEY. At common law, a master is not liable for the wilful trespasses of his servant, which THIS was an action of trespass, commenced by Voght in the Greene Circuit Court, and taken, by change of venue, at the instance of Tuller, to Jersey county. The suit was commenced against Tuller, one Alvord, and three others. Tuller and Alvord were the only defendants who were served They appeared, and pleaded the general issue. term, 1851, of the Jersey Circuit Court, O. C. presiding, the cause was submitted to a jury, who found the defendant Tuller guilty, and assessed the plaintiff's damage at $1,000, and the defendant Alvord, not guilty. with process. At the October SKINNER, Judge, Tuller v. Voght. The defendant Tuller then moved for a new trial, on the ground that the verdict was against law and evidence, and was excessive. This motion was overruled. Tuller then moved in arrest of judgment. Because the declaration is insufficient to authorize the entering of a judgment thereon; and because the action in this case ought to have been trespass on the case, and not trespass. This motion was also overruled, and judginent was rendered upon the verdict. Tuller excepted to the decision of the court, and tendered a bill of exceptions embodying the evidence, and prosecutes a writ of error. The errors assigned are the overruling of the motions for a new trial and in arrest of judgment, and in rendering judgment for the plaintiff. The declaration avers, that the defendants on, &c., at, &c., were the owners of a certain coach or carriage and horses, to wit, four horses, drawing the same; and that a certain coachman or servant of the defendants, then had the management, care, and direction of the same, &c.; and that said servant and coachman of the defendants, on, &c., at, &c., while in the employment of the said defendants, as a driver, &c., with force and arms, drove the same along the highway, with great force and violence, against a certain horse on which said plaintiff was riding in the said highway, by means whereof the plaintiff was thrown with great force and violence off the said horse upon the ground; by means of the premises the leg of the said plaintiff was broken, &c.; concluding, contrary to the form of the statute. J. M. PALMER, for plaintiff in error. The act was wilful and intentional on the part of the driver, and the defendant is therefore not liable. 1 East, 106; 17 Mass. 509; 1 Chitty's Pleadings, 93; 4 Cond. Rep. 666, 671; 8 Durnford & East, 534; 19 Wend. 343; 1 Smith's Leading Cases, 310; 9 Wend. 268; 4 B. & A. 490; 1 Stanton, 568. The court erred in overruling the motion in arrest of judgment. The action of trespass cannot be maintained. Wright v. Wilcox, 19 Wend. 343; 1 Chitty's Pleadings, 127, 131, 180, 181; Tuller v. Voght. 17 Mass. 244; Id. 479; 11 Mass. 57; 4 Wharton, 143; 1 Smith's Leading Cases, 413. The owner of a carriage is only liable for the negligence or unskilfulness of his seryant, and there must be a sufficient allegation. See authorities cited under first point. The defendant is not liable under § 6, chap. 93, R. L. 481; Rev. Stats. N. Y. vol. 1, 695, 696, § 6; because there is no such allegation as will bring the case within that statute. Not alleged that they were the owners of a carriage for the transportation of passengers. As to the necessity for such an allegation, 1 Chitty's Pleading, 290, 291; Id. 416, 417, 418, 423; Id. 383, 384, 385; 12 East, 89, 94; 2 Mass. 444; 4 Pick. 341, 349; 1 Pick. 177; 17 J. Rep. 349, see particularly page 455, 458, overruling the decision of the Supreme Court in same case, in 15 J. R. 250, and also overruling Ouffie v. Hays, 13 J. R. 327, and Bowen v. Morehouse, 1 J. R. 276; Gould's Pleadings, 503, §§ 22, 23, 24; 1 Day, 186; note, 2d Greenleaf, 230. A Statute The declaration is not aided by the 7th section of Road Law, as it has no application. The express mention of one thing implies the exclusion of another. Co. Litt. 210. must be so construed as to give effect to every part. Legal Maxims, 515, 516. Broom's Penal statutes are to be construed strictly. The rule is not confined to penal statutes eo nomine, but extends to those that are penal in their consequences. The defect is not cured by verdict. See Whitcraft v. Vanderver, 12 Ill. 235; and the reasoning upon which that decision proceeds, that the fact stated in the declaration may be true, and still the defendant not be liable, which is understood to express the true rule; and see 5 Monr. 272; 5 B. &. A. 27; 9 Dana, 145. Not cured by an agreed case, 2 Greenleaf, 230. As to the rule upon the subject, 1 Day, 186, note. J. GILLESPIE, on same side. First. New trial should have been granted: 1st, because there is no proof that Tuller had any interest in the coach; 2d, there is no proof that the coach was owned by defendants; 3d, Tuller v. Voght. there is no proof that the driver was in the employ of defendants. Second. Judgment should have been arrested: 1st, Because the declaration omits to allege that the defendants were the owners of a carriage for the conveyance of passengers. See § 6, Road Law; Rev. Stats. 1845, 481; Chitty's Pleadings, 382; Drowne v. Stimpson, 2 Mass. 444; Soper v. Harvard College, 1 Pickering, 177, 179; Williams v. Hingham, &c. 4 Pick. 344, 345; Bartlett v. Crozier, 17 J. R. 455, 456; Little v. Thompson, 2 Greenleaf, R. 230. 2d, Because the declaration omits to allege that the act was done wilfully. The allegation, that the act was done with great force and violence, is not equivalent, as it might have been done with great force and violence, and yet not have been done either wilfully or even negligently or unskil fully, as, for instance, when horses were running away and come against the plaintiff; and the plaintiff must be strictly confined to the statutes, in laying his case in his declaration. Stafford v. Ingersoll, 3 Hill, 41; Renwick v. Morris, 7 Hill, 576; Boin v. Wilson, 1 J. J. Marshall, 203, 204; Doggett v. State, 4 Cow. 63; Leonard v. Bosworth, 4 Cow. 423. The omission is not cured by verdict. Smith v. Moore, 6 Greenleaf, 274; Wright v. Wilcox, 19 Wend. 344; Gould's Pleadings, 502, §§ 20, 21, 22, 23, 24; 4 Pickering, 341. Master was not responsible at common law for the wilful act of his servant, not done in the immediate presence or by command of the master. 1 East, 105; 5 Munford, 483; 5 Gilman, 430; 2 H. Blackstone, 442. Statutes in derogation of the common law must be construed strictly. 1 J. J. Marshall, 203; 2 Mass. 443; 4 Pick. 341. R. S. BLACKWELL, for defendant in error. The action of trespass upon the case is founded on the statute of Westminister, 2, c. 24. 1 Com. Dig. 235. The distinction which runs throughout the earlier authorities, between trespass and trespass upon the case, invariably, and without a single exception is, that the former is a general, and the latter a special writ. 1 Com. Dig. 235. Tuller v. Voght. They are both actions upon the case, in the primitive meaning of the term, because in both the plaintiff's case is set forth; but in the latter it is specially stated, in the former it is generally alleged. 1 Com. Dig. 235. The distinctive features between trespass and trespass upon the case, according to the ancient common law were, First. A declaration in the former, commences with a positive allegation, "for that," the latter with a quod cum or recital “for that whereas." 1 Com. Dig. 235. In answer to this, Mr. Day says: "It strikes me that the words, "for that; whereas," comprise two distinct parts of a sentence after the manner they are now punctuated; the word "whereas" introducing the recitals; the words "for that" having a prospective to the point of the action; and, indeed, by this mode of construction alone is the sentence, I think, made intelligible." 1 Com. Dig. 236, 237. And the courts hold that the insertion of these words in a declaration in trespass, cannot be reached even by a special demurrer. Coffin v. Coffin, 2 Mass. R. 361. Second. The writ was special in both cases, but the cause of action was specially stated in case, generally in trespass. Hence the common appellation of the former, "special action of trespass upon the case." the case." 1 Com. Dig. 235. Under our laws the writ is still more general than at common law; and the facts are neither set forth generally nor specially. It merely commands the sheriff to summon the defendants to appear at a particular time and place, to answer a particular form of action; and one declaration is used for the purpose of informing the party of the cause of action he is called upon to answer. Rev. St. 413, § 1. Third. The declaration in trespass alleged the act complained of to be "vi et armis et contra pacem." Originally a trespass involved a breach of the peace, and in an action for the injury, besides damages to the injured party, a judgment of capiatur was entered, upon which the defendant was taken, a fine was imposed, and he was imprisoned till he paid both the fine and damages. 1 Com. Dig. 237; 5 Cow. R. 344. Under our statute the omission of the words "with force and |