Martinsburgh gazette. [volume] (Martinsburgh, Va. [W. Va.]) 1810-1825, 1824-02-19
Martinsburg Moot Court.


lowing facts, which appeared in evil
dence. !,
The defendant Dunlap having a gun
in market place accidentally dischar-
ged It amongst a crowd OF persons,
wouhdirs the plaintiff Thornton IN suea
a manner as 10 cause the amputation OF
his arm, by which he, the plaintiff, sus.
tanned considerab e loss, both OF time
and money, in etiectlng a cure. Upon
demurrer TO the nature of the action laid
10 the dec aration.-Ihe counsel for the
plaintiff maintained, =.
l.. The difference between the two
actions, trespass ~ at armis and tres
pass on the case, Is exceedingly nice
| he true criterion, IS laid down By all
| the books, is this, Where an action is
dune, which is in itself an Immediate in
jury to another's person or property,
there the remedy is usually BY AN ac-
ton OF. trespa.s III ct arms. But where
| there is no act done, but there IS only
culpable omission, or where the act is
not Immediately Injurious, but only by
| consequence, there action ON the case 10
the proper remedy e Black, Rep. ss2,
Burr Rep. 1852 The case before Us is
mere culpable omission for Ist, The
| p aintif not intending to. discharge the
gun at all, the ris imprsssa, which Is the
| tIuest touchstune to ascertain the exact
difference b etween the two actions,
8 wanting. In the celebratedcase If
Scott VS.. Shepherd, 2.Blick Rep s92,
it is maintained by judge Black
| stone, that in every trespass against
the person of another, there must ne.
cessarily be uis impressa on the part
OF the trespasser. Where there. is a
mere impetus originating, elsewhere than
in the mind Of tine offender Case is the
more proper remedy. That the vis i'm.
pressa excludes omission. The want OF
1t implies omission. BY the testimony
before US, it is clearly evident, that it
was contrary to the will and intent OF
the defendant the gun should be dischar.
sed at all, but that it was entirely acci-
dental. How then could there have
been any ris impressa. The defendant
on the contrary, is chargeable with a
mere cuipable omission, In not using
greater precaution to prevent the acct
dent, 2. If a wilfully runs his vesse
against BIS and damage ensue B may
bring trespass. But it a so negligendj
steer his. vessel, that it runs foul OF BIS
then case is the proper action. SO al
Judged in the case Ogle et al ". Barne,
4 ct al Term. lss, Espinasse N T., vol.
2, 90. Here then in order TO 81 pporl
tresPass, there must be wilfui act done.
ii IT results from negligence Case Is pro-
per. The eside6ce expressly evinces
that the injury was done accidentally,
case therefore is our proper remedy -
IrespaSs always implies ,malfeasance,
for it will not lie for a mere nonfeasance
! Esp vol. CO., Savignac VS.. Roome 5,
Terme Rep. KS. iripe VS.. Potter ibid
sn.-3. fhe definitions as laid down
in Jacobs Law Die. Esp ". P. sc. re
qhlre voluntary act in order to support
trespqsS. Thus in the case OF Taylor
vs.. hainbow s Man. which prima faeis
may appear to settle the question in dis
pute, the ACT was done v0luntari-
y, and therefore trespass was adjud-
sea the proper action. But in the case
before us. an intention to,-do any act
whatever is. excluded We may sup
pose the gun resting upon the. shoulder,
or swinging carelessiy in the defendants
hands, and to have been discharged BIZ
4. some cause perfectly extraneous; in
which case it is cohtended in support OF
our first position, that case and not tres
pass is the proper remedy. Bat should
we faif here. we nave another position,
which if there be force in the opinion of
Judge Blackstone. will bear weightily
upon the point at issue.
| Ii. La the case of Scott vs.. Shepherd,
before cited, Judge Blackstone expresses
| his opinion in the following words: Eve.
ny action Of trespass witha per qaod in
cludes an action on the case may
bring a trespass for the immediate inju-
Try, and subjoin q per quod for the Con-
sequedtiAl damages or may briag case
for the consequential damage, and pass
over the inn etiate injury sustained by
the wound because that the injury Is
personal, and the mischief accideptal.--
But because that the PLAINTIFFS arm has
been amputated, and bis fortune consul
med in eaecting cure, we think it Just
and right, that he should be remunerated
as far as possible. We therefore ask
for the consequential damages; the lm-
mediate injury, pain of the wound, &c
shall be charged on the account OF the
plaintiffs generosity.
In support Of the demurrer the oun-