(after stating the facts). We need not consider the alleged error, in the response of his Honor to the inquiry of the juror, nor the questions raised by his refusal to give the 3d and 6th instructions asked for, as we are of opinion that the defendants are entitled to a new trial for error-in the charge complained of, and for refusal to give the 5th prayer for instruction to the jury.
*293His Honor seems to have assumed that there was no evidence upon the question of levy and abandonment, except that contained in the testimony of the witness Morrison, whereas the witness Leach testifies to a conversation with Morrison, in regard to the levy, in which Morrison said he did not think he had a right to levy, and that he would wait until he saw Mr. Shaw, who was then in New York. Morrison denies, that he had any conversation with Leach before the levy. Leach further testifies, that before Morrison went out to the farm, Jowers had turned over the crop ‘‘to us,” meaning McLean & Leach, and that after that, they had the control of it. Where there are conflicting statements, as a rule, the Judge ought not to single out a witness and say to the jury, ‘'if you believe him, you must find in accordance with his testimony.” “ There may be,” says Reade, J., in Brem v. Allison, 68 N. C., 416, “ cases where it would be proper, but generally it is safer to put the case to the jury upon all the evidence, with proper explanations.” See also, Anderson & Young v. Steamboat Co., 64 N. C., 406; Jackson v. Commissioners of Greene, 76 N. C., 282.
If the witness Leach is to be believed, the property never was seized by the plaintiff. In Rives v. Porter, 4 Ired., 76, Ruffin, C. J., says: “ It answers the purpose of giving notoriety to the levy, for the officer to take possession of the chattels on the premises, provided he remain there with them, so as to be in a situation to exercise that dominion which owners in possession usually exercise.” Here the testimony of Leach would leave it in doubt whether the plaintiff ever had or exercised any dominion .over the property.
A seizure is necessary, and if from the nature of the property, (as is the case with the growing crop, but not of the cotton in the gin and crib,) an actual seizure be impossible, some act as nearly equivalent to a seizure as practicable, must be substituted for it. State v. Poor, 4 D. & B., 385.
*294The defendants were entitled to the instructions asked for in the 5th prayer. The complaint alleges the conversion by the defendants of seed cotton. There is no evidence that they ever received any seed cotton, but it is insisted that the baled cotton shipped to them by McLean & Leach was the same cotton, after it was ginned, which they (McLean & Leach) had gotten from the lowers place. Whether this was a fatal variance between the allegations of the complaint and the proofs, as insisted by the defendants, or not there was some question as to whether the cotton received by the defendants was the identical cotton claimed to have been levied on by Morrison, and the defendants were entitled to have it considered by the jury. The witness Leach says (and his was the only testimony that in any way connected the defendants with the cotton), “ we shipped the cotton to Hall & Pearsall (defendants), at least a portion of it — most of it to them. * * To the best of my recollection we shipped it all to them — 45 or 46 bales,” and afterwards he says: “ I can not say as to shipping the identical cotton in the gin-house to Hall & Pearsall.” Forty-five or forty-six bales of cotton are many times greater, in quantity, than the seed cotton claimed by the plaintiff would have yielded, and the only witness upon the point says that he cannot say that it included the identical cotton. It was the duty of the plaintiff to show, affirmatively, by a preponderance of evidence, that it was the identical cotton, and if the evidence presented any question on that point, it was for the jury to weigh and determine it.
The defendants are entitled to a new trial. Let this be certified.
Error. New trial.