Ward v. . Smith

Nash, J.

It is unnecessary we should express any opinion upon the first objection, as our judgment is founded exclusively on the second. The negro, for the conversion of whom the action is brought, is described in the declaration as negro boy John. Having thus identified him, the plaintiff was bound to show that the negro converted was John. This was necessary to the defendant’s safety against another action for the same conversion. The case clearly states, that there was no evidence, that the negro delivered to the jailor by the defendant was named John, or was known by that name. But one witness, and that the jailor, appears to have been examined, and he stated that he did not know the boy’s name. The case then proceeds and states, •' there was no evidence, that the plaintiff had an interest in any other negro than the one spoken of by the witness.” From this statement we gather, that there was no evidence whatever upon that point. Whether, therefore, the plaintiff owned but that one negro, was not proved ; according to the case he might have owned fifty. If, however, he had shown affirmatively that he had but one negro, to enable him to recover under his declaration, it was necessary to prove, that his name was John. There was no evidence to be left to the jury, “ that it was John belonging to the plaintiff,” who was converted. His Honor therefore erred in that part of his opinion.

Per Cokiam. Judgment reversed, and venire de nov» ordered.