Cash v. Auditor of Clark County

• Decision Date: 11 December 1855
• Parties: Cash v. The Auditor of Clark County
• Court: Indiana Supreme Court

7 Ind. 181

Cash v. The Auditor of Clark County

Supreme Court of Indiana

December 11, 1855

fro the Clark Court of Common Pleas.

The judgment is affirmed with costs.

W. T Otto and J. S. Davis, for appellant.

T. W Gibson, for appellee.

OPINION

Perkins J.

Suit by the auditor of Clark county against Cash, to recover a penalty alleged to have been incurred by the latter in violating the provisions of an act regulating the licensing of pilots at the falls of the Ohio river. The suit was commenced before a justice of the peace. In the Common Pleas it was submitted upon the following agreed case:

"Defendant [Cash] is, and has been for several years past, a citizen of the state of Indiana, and was a duly appointed pilot, at the falls of the Ohio river, under the acts of the general assembly of said state passed prior to the 15th day of June 1852. On the 28th day of April, 1853, the governor of said state licensed, for the term of four years, eight pilots at the falls of the Ohio. Said pilots filed bonds in pursuance of law, before the 10th of May, 1853.

"The defendant is not a licensed pilot under the act of June aforesaid. This fact was well known to the owner of the boat who appointed defendant his agent and authorized him to conduct and pass his boats over the falls of the Ohio.

"Said defendant did, in company with one of said pilots, conduct and pass said flat-boat over said falls about the 10th day of May, 1853. Said defendant was not an owner of said boat, nor was he the navigator thereof, further than his taking said boat over the falls rendered him such navigator.

"Said defendant took said boat from the Indiana shore. He was at the time a licensed pilot between Jeffersonville and New-Albany, under the act of congress.

"There was an agreement between the said defendant and said licensed pilot, that each should accompany the other in any boats that either should have to take over the falls, and divide the compensation. Said defendant acted as pilot in conducting said boat, and said pilot acted as steersman thereof. In taking said boat over the falls, defendant stood at the bow of the boat, and gave directions as to how said boat should be steered, which directions were obeyed by said licensed pilot, who was acting as steersman. It is the custom for pilots to employ a steersman, to whom they give directions for the steering of the boat, they, such pilots, standing upon the bow, and not themselves steering the boat in their charge.

"The defendant charged and expects to receive a compensation from the owner of said boat for his services as aforesaid.

"The owner of said boat lives on the 'upper Ohio.'

"The Court found, upon this agreed case, for the plaintiff whereupon the defendant moved for a new trial, assigning as reasons therefor--1. That the finding of the Court was not supported by the evidence; 2. That the finding of the Court should have been in favor of the defendant. But the Court overruled the motion and rendered judgment...