Davis v. Bagley

Montgomery, Judge. The facts of this case are fully set out in the same case, as it is reported in 40 Georgia, 181, except as to the charge of the Court. Counsel for plaintiff, requested the Court, in the present case to charge the jury, “ that the $5,000, paid by Bagley to the children of Mrs. Davis, were assets in his, Bagley’s, hands” — which the Court refused to do. We think, under the former decision in the case, the plaintiff was entitled to [109] the charge. The delivery of the assets to the children was there decided to be a devastavit, and if a devastavit, the fund was certainly, in contemplation of law, still in the hands of the administrator to be administered. The Judge charged: “ If the jury believe that Bagley reserved in his hands, as administrator of Samuel Jones, an amount sufficient to pay the distributive share of Mrs. Davis, and that the assets in his hands consisted of notes given for the hire of negroes, and sale of negroes, and in Confederate bonds and Confederate money, and that he acted in good faith — then, although he paid to some of the distributees more than lie paid to others, yet if the whole estate in his hands had become of no value, without the fault of Bagley, by the results of the war and subsequent legislation, then the jury should find for-the defendant.” This charge, under the former decision in the case, was not warranted by the evidence. The proof shews that $5,000 had been lost by his fault, and for this amount he was responsible. Judgment reversed.