Yeldell v. Shinholster , 15 Ga. 189 ( 1854 )

By the Court.

Starves, J.,

delivering the opinion.

[1.] The opinion of the Court below, seems to have been,, that if Randolph Blackwell died in possession of tho property, the subject of this controversy, and the defendant, as administrator, took possession of it, and sold the same, inasmuch as he thus “discharged a duty imposed upon him by law”, he was not liable, in this form of action to the plaintiff, “however good his (the plaintiff’s) title might be”.

In this, his Honor was certainly mistaken. An administrator is authorized, by law', to take possession, and dispose of the goods and chattels, rights and credits, &c., of Ms intestate; and he will be protected in the appropriation of them. But if he takes possession of another person’s property, and sells it as the intestate’s, ho does it at his peril; and cannot.be protected, in an action of trover brought against him.

The possession of this property by the decedent, at his death, might properly be looked to, as evidence of his title. But, off course, it could bo contradicted; and, inasmuch as there was some .evidence before the Jury to this effect, the Court should have charged, that “if the Jury believed the title to the property was in the plaintiff, at the time of Blackwell's death”,, they should find for the plaintiff.

[2.] When first requested so to charge, the Court declined, assigning as one reason, (the other reason is disposed of by what wTe have already said,) that “ the request was made after the Court had commenced its charge”, and by interruption.

It is not proper practice for counsel to interrupt the Court in his charge. But it is perfectly proper, after the Court has closed, for the counsel respectfully to call his attention to any point omitted, on which instruction from the Court to the Jury is desired, and on which it should be given. And it is the duty of the Court, in such case, to charge the Jury in relation to the same.

[3.] It would be better, in all cases, if such requests to charge, could be submitted in writing, by counsel, before the Court proceeds to charge the Jury; but in the pressure of business, this is frequently impracticable, without considerable delay ; and in such event, it is proper, after the charge is closed, that the attention of the Court should be called to a point omitted.

[4.] The record shows, that after the Jury had retired, and, being unable' at once to agree, had returned into Court for further instructions, the Court was again requested to give the instruction which had been refused; and again the request was declined.

In this the Court erred.

Let the judgment bo reversed.