#### Richard Felton v. Duncan McDonald.

To prove a mis-description in a license to a coasting vessel, the license itself should be produced — a mistake in that part of the enrolment which recites a description contained.™ a former enrolment 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 plaintiffs 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.

Pxea — not guilty.

The mistake alleged to have keen committed by the defendant in the licence, 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 enrolment, in which the vessel was described, “ as having been built at &c. in the year See. as appears “by a certificate of enrolment issued at Elizabeth City “ on &c. now surrendered on account of a change of “property; and the said certificate of enrolment having “ certified the said vessel has one deck and two masts, “ and that her length is &c. that she was a square stera- “ cd sloop, has &c. and the said R. F. having agreed to “ the description and admeasurement above specified &c. *407 a tjie said sloop lias been duly enrolled at the port of “ Edenton.”

2d. A letter of the defendant to the collector of Key Y/est, 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 counter-part of the enrolment “and licence, 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 im- “ proper conduct, either of the master or owner.” The licence 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.

Dcvereux for the plaintiff.

Iredell contra.

Gaston, Judge.

We are of opinion that the nonsuit in this case was properly directed. The gravamen of the plaintiffs 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 enrolment granted at the same time with the license. This enrolment purports to be made in lieu of an enrolment 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 Richard 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 to contain this erroneous des-*408ivription, nor the surrendered certificate of enrolment, nor a copy thereof from which it might appear whether the same had, or had not been faithfully recited in the new certificate of enrolment.

Had the case stopped here, the'propricty of the non-suit could scarcely have been disputed. The plaintiff complains of a mistake committed by the defendant in ina-king out the license, but does not shew til at 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 enrolment, 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 enquire, but it was inadmissible in this case, because well-founded proof to establish it directly was attainable by tlie plaintiff. Then to shew 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, anil 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 slie liad 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 bis. How she is called in the license, the plaintiff does not shew, but in •the certificate of enrolment she is termed a Sloop, and not a Schooner. There is then no evidence that the case which the defendant supposed possible had occurred.

*409Qf the weight' of evidence, the jury have the exclusive cognizance. But there must he evidence for them to weigh, and whether any competent evidence has been offend 0f 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.-' — Judgmbst apexrmed.