These exceptions are from an order made by the county court in habeas corpus proceedings, discharging the relator from arrest on two executions; one in favor of Charles F. Nason and Lilla M. Nason, his wife, the other in favor of Charles F. Nason. These executions were issued on judgments rendered on default in actions brought against the relator for a personal injury sustained by Lilla M. Nason. The declaration in the first suit is styled an action of trespass, commences with an allegation that the defendant assaulted the said Lilla M. Nason, and *320charges in substance that while she was walking with due care and prudence on a sidewalk in a public street the defendant recklessly, carelessly and negligently ran into the said Lilla M. Nason and knocked her down. The declaration in the second suit is in case; and the charging allegation is the same as in the first, omitting the opening averment that the defendant “assaulted” the wife.
The executions issued on the 25th day of November, 1912; and on the same day the relator was adjudged a bankrupt in voluntary proceedings, and obtained a stay of execution until he should apply for his discharge and his application be acted upon. The judgments were included in the debtor’s schedule of liabilities, and the plaintiffs received clue notice of all the proceedings in bankruptcy, but did not present their claims before the referee, nor appear in any of the proceedings except in opposition to the petition for a stay of execution.
The question presented is whether these judgments are within the clause of the bankrupt act which excepts from the operation of° a discharge liabilities for wilful and malicious injuries to the person or property of another. The only facts in the case characterizing the wrong complained of are those set forth in the declarations. There is no certificate in either case that the cause of action arose from the wilful or malicious act or neglect of the defendant, and no statement of any evidence, if any was taken. The question is to be disposed of upon what appears in the declarations; and the allegations of the declarations are to be given the construction most favorable to the relator; for the burden is on the judgment creditor to show that the debt is within the exception. Bailey v. Gleason, 76 Vt. 115, 56 Atl. 537; In re Peterson, 77 Vt. 226, 59 Atl. 828.
The fact that the first declaration is trespass in form and charges the wrong as an assault is not controlling. The characterization of an act as a trespass carries no implication of intent or malice. And trespass is a proper remedy for an assault where the injury is the direct result of a force put in motion by the defendant, even though the force was put in motion through negligence. Howard v. Tyler, 46 Vt. 683; Judd v. Ballard, 66 Vt. 668, 30 Atl. 96. The fair construction of the allegation in the first declaration is that the defendant assaulted the plaintiff wife by negligently running into her. *321Moreover, the allegations of date, location and description in the two declarations are identical, and evidently relate to one occurrence; and the same wrong cannot have been, in fact, a malicious act as to one claim and mere negligence as to the other.
These declarations allege that the defendant recklessly, carelessly and negligently ran into the plaintiff wife and knocked her down. There is no allegation that this was done intentionally, wilfully, or maliciously. There is nothing in the nature of the violence alleged that indicates intention or malice. There is no allegation of accompanying language characterizing the act as malicious. The addition of the word “recklessly” to the terms more commonly used does not change the nature of the allegation. The characterization of the defendant’s act is doubtless intensified, but it still remains a charge of negligence. In suffering a default, the defendant conceded nothing beyond this, and nothing more can be implied from the judgment. One can be liable in a civil action for direct violence to the person of another without there having been malice, or intention to injure, or an intention to do the act which caused the injury. Judd v. Ballard, 66 Vt. 668, 30 Atl. 96.
Judgment affirmed.