Pate v. Henry , 5 Stew. & P. 101 ( 1833 )

TAYLOR J.

The Inferior Court, as it appears by the bill of exceptions, decided that the owner of a public ferry was not bound to put any person across the stream after night. This cannot be the intention of the statute, regulating this subject.— The phraseology of the act will not bear this construction, and it would be highly inexpedient that such should be the law. It would be useless to enter into a long discussion to show the inconveniences which would be attendant upon giving this latitude to ferry owners; it is enough to say the statute does not give it.

The counsel for the defendant dwells much upon the great hardship of requiring persons in this situation to expose themselves to the dangers attendant upon the transportation of persons, <&c. during excessive darkness, the prevalence of high winds, or in the dead hour of the night. To require this would be hard. But it certainly would be equally so to permit a ferryman to stop a person travelling upon urgent business just at night fall, when there., might be a moon shining rendering it almost as light as it would be of a cloudy day, merely because *he chose to do so.

There is no danger, howrever, to be apprehended by the ferryman.. If the wind was high, or the night dark, when the application was made to him, so as to expose him to danger in an attempt to cross, he might show this to justify his refusal: and even were it late at night, after the usual bed time, it might, under some circumstances,- as' where the ferry was some distance from his dwelling, and probably in many other cases, be a saiiicicnt excuse.

The opinion of the inferior Court was certainly wrong.

But it is contended the suit should have been upon the bond.

The statute expressly imposes the penalty of ten' dollars upon any ferryman for “ failing to do his' duty, ” to be recovered by any person detained thereby, before a justice of the peace.

It is insisted, however, that it is not shown by the proceedings below that the defendant’s was a public ferry.

The indorsement on the warrant states that the suit “is brought to recover ten dollars forfeited by the defendant as a keeper of a public ferry P The whole of tile proceedings below, show that it was considered as a public ferry.

The judgment must be reversed; but as the defendant may be able to show some good reason for his conduct, the cause will be remanded, if his counsel wishes it; otherwise judgment will be rendered here for the ten dollars, forfeited under the statute.-