Opinion
(June Term, 1834.)
To prove a misdescription in a license to a coasting vessel, the license itself should be produced. A mistake in that part of the enrollment which recites a description contained in a former enrollment is not evidence of a similar mistake in the license.
CASE in which the plaintiff declared against the defendant, the collector of the port of Edenton, for so carelessly making out a coasting license of the plaintiff's sloop Martha Jane, that by reason of a mis-description, she was seized by the collector of Key West, and the plaintiff put to great costs and charges in defending her.
Devereux for the plaintiff.
Iredell contra.
PLEA — not guilty.
The mistake alleged to have been committed by the defendant in the license, was in describing the vessel to be a schooner, when in fact she was a sloop, and to prove this, the plaintiff offered, 1st, a certified copy of the certificate of enrollment, in which the vessel was described, "as having been built at etc., in the year, etc., as appears by a certificate of enrollment issued at Elizabeth City on etc., now surrendered on account of a change of property; and the said certificate of enrollment having certified the said vessel has one deck and two masts, and that her length is etc., that she was a square sterned sloop, has etc., and the said R. F. having agreed to the description and admeasurement above specified, etc., the said sloop has been duly enrolled at the port of Edenton." (407)
2d. A letter of the defendant to the collector of Key West, informing the latter, that the plaintiff had stated the Martha Jane to have been seized "in consequence of some informality in the papers issued at this office," and that "on examining the counterpart of the enrollment and license, nothing improper appears on the face of them, unless I may have called her a schooner instead of a sloop, if so it is a mistake of my own, and no improper conduct, either of the master or owner." The license not being produced, nor its absence accounted for, his Honor, Judge Martin thinking that no evidence of the mistake had been given, directed a nonsuit to be entered, and the plaintiff appealed.
We are of opinion that the nonsuit in this case was properly directed. The gravamen of the plaintiff's action, is that the defendant, collector of the customs for the port of Edenton, in issuing a coasting license to the plaintiff for his vessel, the Martha Jane, had made an erroneous description, by reason whereof she had been seized by the officers of the customs at Key West, and the plaintiff thereby damnified. In support of the allegation that the defendant had committed this error, the first testimony offered by the plaintiff was a copy of the certificate of enrollment granted at the same time with the license. This enrollment purports to be made in lieu of an enrollment formerly made at Elizabeth City the certificate whereof is surrendered, because of a change of property. The certificate produced states that in the certificate surrendered, the vessel is described as a square sterned sloop, with one deck, and two masts, that Richards Felton, the present owner agrees to that description as correct, and that the said sloop is now enrolled at the Port of Edenton. The error is that she had one mast, and not two masts. The plaintiff did not offer in evidence the license, nor any copy of the license, which he averred contained this erroneous description, nor the surrendered certificate of enrollment, nor a copy (408) thereof from which it might appear whether the same had, or had not been faithfully recited in the new certificate of enrollment.
Had the case stopped here, the propriety of the nonsuit could scarcely have been disputed. The plaintiff complains of a mistake committed by the defendant in making out the license, but does not show that license, nor a copy of it, nor account for the non-production of a copy. Withholding this testimony, he calls upon the jury to presume, that because there was a mistake in the certificate of enrollment, therefore there was the same mistake in the license issued at the same time. Whether this inference could be made if the license itself and all traces of it had been lost, it is unnecessary to inquire, but it was inadmissible in this case, because well-founded proof to establish it directly was attainable by the plaintiff. Then to show that this supposed mistake was committed by the defendant, he relies upon his certificate, reciting a former certificate issued by an officer of the customs at another port, in which recited certificate the error appears, and setting forth that the plaintiff agrees to the description as therein recited. This per se not only furnishes no evidence of a mistake made by the defendant, but repels such an inference. It must be taken as true until the contrary appears.
The only other testimony offered as to a mistake by the defendant in making out the license, was a letter of the defendant to the officer of the customs at Key West, on hearing from the captain of the Martha Jane that she had been detained, because of some alleged irregularity in her papers. He expresses his surprise at this information, and his inability to conjecture what the irregularity can be. He adds, that possibly she may be called on those papers a schooner, and not a sloop, and that if this be the case then the mistake was his. How she is called in the license, the plaintiff does not show, but in the certificate of enrollment she is termed a sloop, and not a Schooner. There is then no evidence that the case which the defendant supposed possible had occurred.
Of the weight of evidence, the jury have the exclusive (409) cognizance. But there must be evidence for them to weigh, and whether any competent evidence has been offered of a disputed fact, it is within the particular province of the Court to determine. We concur with the judge who presided at the trial, in the opinion that none such was produced, to establish the essential averment that the mistake complained of in the license, was made by the defendant.
PER CURIAM. Judgment affirmed.