
    
      Minutes of Superior Court, letter F. p. 351,
    Mein, Mackay & Co. vs. West.
    ACTUS DEI.
   Charlton, Judge.

It appearing upon the face of the record, that the inju ry upon which this action is founded, was occasioned by the storm of September, 1804, a verdict was at this term rendered for the plaintiffs. And a motion in' arrest of judgment is now made by Harris, upon the ground, that the injury complained of was occasioned by the act of God ; and therefore damnum absque injuria.

This action is founded on the misfeasance of the defendant, and the only point for the opinion of the court is involved in the question, whether an injury, occasioned by such cause as is stated in the record, can be considered as arising ex delicto of the defendant.

Trespass is founded upon a misfeasance, or, the injury which is the basis of that action, must be wilful and voluntary. It is a fundamental, and one of the best maxims of the law, that the act of God can do no injury. t Then what is denominated the act of God, as contradistinguished in the books from the act of man ? It is thus defined by lord Mansjield, “such as would not happen by the intervention of man, as storms, lightning, and tempests.” 1 Term Rep. 33.

If such is the definition of an act of God, and if any one of those acts which are enumerated in that definition, will excuse a common carrier, loaded as he is by the law with all the responsibility of an insurer, and forwhom the law shows very little mercy ; so much stronger therefore is the reason for applying its benefits to the case of a common person, who only impliedly contracts that he Will not do an intentional wrong. Was it practicable — was it physically possible, for human exertion to repel the accidents which resulted from the storm of 1804 ? Was it not an act of God, irresistible in its operation, and above the intervention of man ? It certainly was an awful interposition of divine energy, which it would not only be illegal, but impious to convert into a pe-, cuniary advantage to one who has suffered from its ble effects. All the cases are with the defendant. It is therefore ordered, that judgment be arrested.

Stiles, for Plaintiff.

Harris, for Defendant,

Judgment arrested.  