
    TROTMAN H. WARD vs. ELIJAH SMITH.
    Where in an action of trover for the conversion of a negro, the declaration designates the negro by the name of John, he must prove on the trial that the negro converted was named John.
    
    Appeal from the Superior Court of Law of Chowan County, at the Spring Term, 184S, his Honor Judge Settle presiding.
    The plaintiff declared in trover, for the conversion of a negro named John. It appeared, that, on a Saturday night, the defendant delivered to the jailor of Chowan County, at the jail in Edenton, a negro boy, and said he was hired by the plaintiff, and that he was a runaway. The jailor received the boy, put him in jail and kept him there, until Monday morning, when upon the application of the plaintiff, he delivered him to him on his paying his prison fees, two dollars. It was not proved that the name of the negro was John, and there was no evidence that the plaintiff had any interest in any other negro, than the one spoken of by the witness.
    The defendant insisted, .that the plaintiff could not recover for two reasons : first, because there was no evidence of the conversion of any negro boy; and secondly, because there was no evidence of the conversion of the negro boy John. The presiding Judge charged the jury that there was evidence of a conversion, and, if from the evidence they found, that the defendant so converted a negro boy, and that it was John, belonging to the plaintiff, they should find for him.
    Under this charge the jury found a verdict for the plaintiff and from the judgment thereon the defendant appealed.
    
      
      Heath, for the plaintiff.
    
      Iredell, for the defendant.
   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.  