delivered tbe opinion of tbe Court;
Tbis was an action of trespass by Featberston, tbe plaintiff, in tbe Court below, in wbicli tbe cause of complaint, set forth in tbe declaration, is, tbat "Wagoola, a slave of tbe defendant, shot and killed a certain mare, belonging to tbe plaintiff. Tbe only objection tbat can be taken to tbe declaration, in other respects Sufficiently formal, is, tbat in stating the cause of action it is not averred tbat tbe killing of tbe animal was wilful and malicious, Which we apprehend should have been 'done, or at least some words of a corresponding import used in conformity with the language of a penal statute. Tbe proof at tbe trial was, tbat tbe defendant bad three negro men, all of whom frequently carried guns; tbat used by Wagoola, being a large rifle. A few days before tbe mare was shot,, a witness beard "Wagoola tell tbe plaintiff, tbat if be did not keep her away from tbe defendant’s plantation, be, Wagoola, would kill her. Tbe mare was found shot, in defendant’s field, tbe wound having tbe appearance of a large bullet bole. Tbe field Was neax* tbe defendant’s bouse, tbe gap to it being open, and tbe fence down in several places. It was winter, and tbe frozen state of tbe ground indicated tbat tbe fence bad been down for some days previous.
Tbe Court, against tbe objection of tbe defendant, admitted evidence of what tbe witness beard "Wagoola say, and also instructed tbe jury that tbe threat made by him “was evidence conclusive to prove tbe plaintiff’s case, and should be taken into consideration by them.”
Tbe defendant moved for a new trial; and also in arrest of *161judgment, because the plaintiff’s remedy could only have been in case.
The act of killing a horse, done wilfully and maliciously, is one of those indictable offences enumerated in the statute, and for which, if committed by a slave, the master is made responsible in .damages to the party injured. (McConnell vs. Hardeman, decided at the present term.) The remedy here was not misconceived ; but though the statute used the word trespass as descriptive of the act, no reason is perceived why the form of the remedy may not be in case or trespass according as the one. or the other is the more appropriate remedy, with -reference to the .common law distinctions between those forms of action.
Looking to the context of the instruction, the expression used in the charge, that the threat made by Wagoola was conclusive, must have been inadvertently given. But it was clearly not evidence, against the defendant, not shown to have been present, or to have authorized the slave to make it. No doubt there may be cases where the master recognizes or holds out his slave ashis agent, so as to become bound by the acts and declarations of the slave connected with his agency. And it may be supposed, that after a conspiracy has been established, by competent testimony, between a white person and a negro, the declarations of either in furtherance of the common design, would be admissible against the other. But nothing of the kind is shown here. In an indictment against the slave for the offence of killing the animal, evidence of his previous threat would be admissible, and, in connection with other circumstances, might go far to satisfy the jury of his guilt. But, in a civil suit against the master, to recover damages for an unauthorized act of the slave, proof of his statements or admissions, certainly those not accompanying and explanatory of the act done, cannot be admitted against the master without indirectly making a negro a competent witness against a white man. The judgment will be reversed, and the cause remanded, with instructions to grant a new trial, and with leave to the plaintiff, if desired, to amend his declaration.