warrants had been sworn out for this rent and had been placed in the sheriff's hands for the purpose of claiming the proceeds. In addition to these facts it was conceded upon the hearing that the defendant Harris had applied for and obtained a homestead which did not include the property in question, also that he had other crops, which, though included in the homestead, were subject to the liens of Porter and Eve, but which could not be levied on by Mulherin's fi. fa., on ac count of being exempt under the homestead. It was agreed upon the trial that these additional crops were sufficient to pay the rents. The trial court awarded the funds to Porter and Eve, and Mulherin excepted, alleging that the judgment was erroneous: "(1) Because the distress warrants were without lien on the fund in the hands of the sheriff, for the reason that they were proceeding to assert the special lien of the landlord upon the crop of the year, and this lien had not been perfected by levy. (2) Because, in addition to the corn levied upon by the sheriff, proceeds from the sale of which are in his hands, there was other produce grown on said premises for the same year, on which these distress warrants may be levied, sufficient to pay off said distress warrants, out of which the plaintiffs in distress warrants may realize their claim, and from levying upon which plaintiff in fi. fa. is debarred by the defendant's homestead; and it is an equitable principle that if two plaintiffs have liens on the same person, and one plaintiff may attach two funds, and the other but one, the plaintiff having the right to proceed against the two funds will be turned upon that fund out of which the other plaintiff has no right to recovery."

1. The corn, having been seized by the officer under the common-law execution, was in judicial custody, and therefore was not subject to levy by virtue of the distress warrant. Fulghum v. Williams, 114 Ga. 643, 40 S. E. 695, 7 L. R. A. (N. S.) 1055, 88 Am. St. Rep. 48, and cases cited. Ordinarily the levy of a distress warrant is the apt and effectual means of asserting the landlord's lien for rent; but in cases such as this, where a levy is not allowable, the lien may nevertheless follow the fund. "Where money is in the hands of an officer, he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their lien with him. Notice to retain, unaccompanied by a lien, is insufficient. Money raised by legal process not being subject to levy and sale, the court in making distribution proceeds upon equitable principles. All parties intervening shall, by appropriate pleading, set forth the ground of their claim to the fund. All persons interested, who are notified in writing by the sheriff or movant of the pendency of the rule, will be bound by the judgment of distribution." Civ. Code 1895, 4776; Hopkins v. Pedrick, 75 Ga. 706; Na

tional Bank v. Exchange Bank, 110 Ga. 693, 36 S. E. 265 (2).

2. Upon a rule to distribute money the equitable doctrine of the marshaling of assets and securities is applicable. This rule, established upon ancient authority in courts of equity, has express recognition in several sections of our Code, notably sections 2691, 4002, and 4012. "The general rule is that if one creditor, by virtue of a lien or interest, can resort to two funds, and another to one of them only, the former must seek satisfaction out of that fund which the latter cannot touch." Pom. Eq. Jur. § 1414. But this relief will not be given if it will prejudice the rights of third persons. Ga. Chem. Works v. Cartledge, 77 Ga. 547, 4 Am. St. Rep. 96; Green v. Ingram, 16 Ga. 164; Behn v. Young, 21 Ga. 207 (3); Craigmiles v. Gamble, 85 Ga. 439, 11 S. E. 838. "The doctrine of marshaling will not be applied so as to work an injustice to the debtor. Consequently it is generally held that it cannot be invoked to compel a creditor to resort to a homestead in the first instance. The object of the exemption is to protect the debtor and his family. If a creditor without a lien were allowed to compel its application upon a prior claim, the right might be practically valueless." Pom. Eq. Jur. § 869. The equity of the beneficiaries of a homestead is, under our Constitution and laws, superior to that of a creditor by ordinary judgment, where the right of homestead has not been waived, or the homestead estate is not otherwise subject to the debt upon which such judgment is founded.

Judgment affirmed

PRINCE, Sheriff, v. WALKER. (No. 121.) (Court of Appeals of Georgia. Feb. 21, 1907.) SHERIFFS LEVY FAILURE TO SELL-RULEANSWER.

Where the sheriff has levied a common-law fi. fa. upon a crop in the field, but neglects to sell the same, and is ruled by the plaintiff in fi. fa. for his failure to make the money, it is not sufficient answer that subsequently to the levy the landlord of the owner of the crop carried the crop away and appropriated it to the payment of a lien due him, superior to that of the plaintiff in fi. fa.; but, so far as the answer to such a rule denies that the crop was of the value alleged by the plaintiff in fi. fa., it is good, and should not be stricken.

(Syllabus by the Court.)

Error from City Court of Dublin; Burch, Judge.

Rule by one Walker against one Prince, sheriff, alleging that by failure to sell certain crops after levy on same he had been damaged to the amount of the debt. Rule absolute, and plaintiff brings error. Reversed.

W. C. Davis, for plaintiff in error. Ira S. Chappell, for defendant in error.

POWELL, J. Prince, as sheriff of the city court of Dublin, levied a common-law fi. fa. in favor of Walker upon certain crops of the defendant in fi. fa. Subsequently, upon the sheriff's neglecting to sell the property, Walker brought rule, alleging that the crops levied on were amply sufficient to pay the fi. fa. in full, and that by the sheriff's failure to proceed with the levy he had been damaged in the amount of his debt. The sheriff answered, admitting the levy, but denying that the crops levied on were sufficient to have paid the fi. fa., and setting up additionally that after the levy the crops were removed from the field by the landlord of the de fendant in fi. fa. and appropriated to pay the rent due the landlord for the use of the land on which the crops were raised, that it took all of said crops so levied on to pay the lien for rent, and that the landlord's lien was superior to plaintiff's fi. fa. The court struck the entire answer as being wholly insufficient in law, and gave rule absolute for the amount of plaintiff's fi. fa. The sheriff excepts.

So far as the answer of the sheriff denied that the crops were sufficient to pay the fi. fa., it presented a good defense. "Two things are necessary to fix the sheriff's liability by rule-contempt of court in not executing its process, and injury to the plaintiff." Wheeler v. Thomas, 57 Ga. 163. See, also, Wilkin v. Am. Freehold Mortgage Co., 106 Ga. 182, 32 S. E. 135. It seems plain, therefore, that this portion of the answer should not have been stricken.

There is more difficulty as to the other excuse set up by the sheriff for not making the money-that after the levy the landlord took the crops and applied them to his superior lien. The sheriff contends that by showing this fact he demonstrates that no injury has resulted to the plaintiff in fi. fa.; and we must confess that the proposition strikes us with considerable force. However, after an examination of the authorities, we have concluded that this does not present any sufficient answer. The levying officer may show outstanding title in a third person to escape liability for not selling property levied on; but the landlord has no title. His only remedy by which he could protect his lien after the levy by the sheriff was to sue out a distress warrant and to place it in the hands of the sheriff for the purpose of claiming the proceeds upon rule to distribute. Mulherin v. Porter, 1 Ga. App. 153, 58 S. E. 60. Upon such a rule the plaintiff in fi. fa. could have contested with the landlord upon equitable principles, and probably upon more favorable terms than he could have resisted the defense set up by the sheriff under the landlord's rights; since in the latter case the matter has been so brought about that the sheriff and the landlord, whose interests would naturally be in line with those of the sheriff, are probably enabled to claim a monopoly upon the direct proof as to the

value of the crops. Justice Samuel Lumpkin, in Duncan v. Clark, 96 Ga. 266, 22 S. E. 928, in discussing the reasons why it is necessary for the landlord to foreclose in order to assert his lien, adverts to this question as follows: "It covered the entire crop of the tenant, and it is obvious that in such a case the landlord and tenant, by collusion between themselves, could easily defraud judgment creditors of the latter, if he were allowed, by merely delivering the crops, or a portion thereof, to the landlord, to vest in him a title which would be superior to the lien of existing judgments against the tenant. The tenant, by delivering to the landlord more than enough of the crops to satisfy the landlord's lien, could, with the latter's connivance, cover up property really subject to judgments held by other creditors. Hence, in such cases, as was suggested in Stallings v. Harrold, Johnson & Co., 60 Ga. 478, the necessity that the property be legally administered and the proceeds paid out according to due priority, thus giving to all persons interested the assurance of obtaining their exact rights." If the sheriff had maintained his levy, the landlord might have found other means of obtaining the sum due him. We therefore hold that the portion of the answer relating to the seizure of the crops by the landlord and the appropriation of them to the rent lien was properly stricken.

The sheriff's remedy in the matter is to sue the landlord for the violation of the levy. To such a suit the landlord would not be permitted to set up as a defense his wrongful seizure of the property from the sheriff's possession. The sheriff's title acquired by the levy is superior to the landlord's unfore closed rent claim. Let there be a new trial, solely on the ground indicated in the headnote.

Judgment reversed.

DAVIS V. JOINER. (No. 48.) DURDEN v. MUTUAL FERTILIZER CO. (No. 49.)

(Court of Appeals of Georgia. Jan. 29, 1907.) 1. WRIT OF ERROR BILL OF EXCEPTIONS SUFFICIENCY-STATUTORY PROVISIONS.

A bill of exceptions which recites that a motion to dismiss a certiorari was made upon various grounds, and that the motion to dismiss was sustained on all the said grounds (said grounds being specifically set out in the bill of exceptions), "to each and all of which rulings the plaintiff excepted, now excepts, and assigns the same as error," specifies "plainly the decision complained of and the alleged error," and "specifically sets forth the errors alleged to have been committed," within the meaning of Civ. Code 1895, §§ 5527, 5528.

2. JUSTICES OF THE PEACE-REVIEW-CERTIORARI-PAYMENT OF COSTS-CERTIFICATE.

Section 4639, Civ. Code 1895, requires, among other things, that, "before any writ of certiorari shall issue, the party applying for the same, his agent or attorney, shall

*

** * produce a certificate from the officer whose decision or judgment is the subject-matter

of complaint that all costs which may have ac trued on the trial below have been paid." Where such certificate was not made by the "officer whose decision or judgment is the subject-matter of complaint," but by the clerk of the court, this was not a compliance with the positive requirements of this section of the Code, and a motion to dismiss the certiorari on this ground, made in the superior court, was properly sustained. Fuller v. Arnold, 64 Ga. 600 (3); Osborn v. Osborn, 70 Ga. 716; Cole v. Thurman, 45 S. E. 78. 119 Ga. 55; Dixon v. State, 49 S. E. 311, 121 Ga. 346; Miller v. State, 55 S. E. 405, 126 Ga. 558. The statute on this point, being free from ambiguity, must be construed according to its plain terms. Nowell v. Haire, 42 S. E. 719, 116 Ga. 388. For the reasons stated in this headnote, the judgment dismissing the certiorari is affirmed in both cases.

(Syllabus by the Court.)

Error from Superior Court, Emanuel County; Rawlings, Judge.

Two actions-one between one Davis and one Joiner, and the other between one Durden and the Mutual Fertilizer Company. From the judgments, Davis and Durden bring error. Affirmed.

Saffold & Larsen and Z. D. Harrison, for plaintiffs in error. Smith & Kirkland, for defendants in error.

HILL, C. J. Judgments affirmed.

MOORE v. CENTRAL OF GEORGIA RY. CO. (No. 214.)

(Court of Appeals of Georgia. March 28, 1907.) 1. CARRIERS - EXPULSION OF PASSENGER -DAMAGES.

The forcible expulsion of a passenger from a railway train, where he presents the conductor a ticket from which coupons have been improperly detached by another conductor of the company on an earlier portion of the passage, is a tort by breach of duty, for which the passenger is entitled to recover any damage he may have sustained, as determined by the jury from the evidence; and it is error to award a nonsuit, where the plaintiff has proved such case, as laid in the petition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1432.]

2. TRIAL-NONSUIT-OPENING CASE.

Whether a case shall be opened after a motion to nonsuit has been made is in the discretion of the trial court; and, where (as in this case) the trial judge did not in terms refuse to open the case as a matter of discretion, his consent to open the case is implied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 165.]

3. EVIDENCE-DOCUMENTS IN POSSESSION OF

ADVERSE PARTY-PRODUCTION.

As a general rule (subject to exceptions for privilege), where it is shown that a paper which would be evidence material to the issue is in the court, it is the duty of the judge to require the production of such documentary evidence instanter; and it is the duty of the court, where the alleged holder of such paper is there present, to grant a proper request for an investigation to determine whether such paper is in fact in court, and whether its production shall be required.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1540-1557.]

4. SAME.

A railroad ticket is evidence of the purchaser's right to ride a certain distance. When honestly obtained by purchase and payment therefor, it is the property of the purchaser. It is his property until delivered by him in exchange for transportation. If it be a coupon ticket, and any of the coupons be negligently, improperly, or wrongfully detached by the carrier, the purchaser has, none the less, a property right in such detached coupon, for purposes of evidence.

(Syllabus by the Court.)

Error from City Court of Atlanta; Reid, Judge.

Action by one Moore against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Edgar Latham, for plaintiff in error. Dorsey, Brewster, Howell & Heyman, for defendant in error.

RUSSELL, J. The plaintiff was nonsuited, and he excepted. He objects to the process of legal mechanics by which his case was chopped off. As this mechanical treatment can only be applied in a case so clear as to leave it beyond question that the plaintiff has nothing which it would be to his advantage to submit to the jury, and as the plaintiff in this case had proved the allegations of his petition, the question before us really becomes one as to whether the plaintiff selected the proper form of action; that is, whether he should have sued, as he did, because he was ejected from the train, or whether he should have based his cause of action (if he has any) on the wrongful tearing of his ticket. We think the plaintiff's case is controlled by the decision in Head v. Ga. Pacific R. Co., 79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep. 434.

Counsel for the defendant insists that the plaintiff did not present a complete ticket to the conductor; that what he did present was a part of a contract, which was absolutely worthless without the ticket part of the same attached thereto. It is a further contention of the defendant in error that in the Head Case, in Morse v. Southern Ry. Co., 102 Ga. 302, 29 S. E. 865, and in Southern Ry. Co. v. McKenzie, 102 Ga. 313, 29 S. E. 869, and other similar cases, the plaintiff, in each case, had a ticket and made an effort to comply fully with the requirements of the railroad company. We can see no real difference between those cases and the present case. In the Head Case, as in this, the plaintiff did not have a ticket, in the strict sense of that term. It lacked validation; and this lack of validation, according to one of the express stipulations of the contract, voided it, so far as return passage was concerned. In this case the plaintiff had a ticket; but the coupon was detached, without any fault on his part. If he had objected to the conductor detaching the return coupon (instead, as appears from the evi

dence, of ignorantly and passively submitting), he would have been powerless to prevent the detaching of the coupon and impotent to restore it. As in the Head Case, he complied fully with the requirements of the railroad company. He paid for his ticket, presented it to the conductor, and had the right to rely upon the fact that the company, which had sold him the ticket, would not destroy it. A corporation can only act through its agents; and so one hand of this being presented him the ticket, while the other hand repudiated and destroyed it. The only difference that we can see between the Head Case and the present case is that in the Head Case the conductor was bound, at his peril, to consider proof of identity of person. The present case relies on proof of identity of place of destination. In the Head Case the conductor, acting in behalf of the company, would have had the perfect right to eject the passenger if he had not been the person mentioned in the ticket and who originally purchased it; but the company having sold the ticket, acted at its peril, and if it ejected the purchaser, whose ticket, through no fault of his, was not validated, the company became liable. In the present case the plaintiff had a ticket, or a portion of a ticket, which he tendered the conductor, which showed that it was valid, except that it did not designate the place of destination. The company, having sold the ticket, is presumed to know the place of destination. If the holder of the ticket states the wrong place of destination, the company has the right to eject him, after carrying him to the proper place of destination. But it acts at its peril if it disregards its own contract and excludes the passenger short of the point where it has agreed to carry him. The principle underlying the

decision in the Head Case is that the corporation is responsible for the acts of its agents-not of one only, but of all with whom the opposite party to the contract is obliged to deal until the contract has been fully executed; and the same principle is controlling in this case. It is not a question of the conductor's hearing evidence, and passing upon it, as to whether the holder of an unvalidated ticket was the true purchaser, or whether the holder of a contract with the return coupon detached was entitled to ride to Hampton or to Savannah, Ga.; but in both cases the identical person (artificial) who sold the ticket and made the contract must be presumed to know its contents, and be held to carry them out. We think, therefore, the award of a nonsuit in this case was erroneous.

The second exception is taken to the refusal of the court to allow a witness to be placed upon the stand for the purpose of proving that the coupon which had been detached was in his possession and in the court.

As a general rule, where it is shown that a paper which is material to the issue is

in the court, it is the duty of the judge to require the production of such documentary evidence instanter. But this rule is subject to exceptions. For instance, if the paper in question is in the possession of counsel for one of the parties, the court in some cases may not require him to discover it, but may require the client to obtain it from his counsel and disclose it to the court. On the other hand, there is a difference dependent on the character of the possession. Where a paper which has been surreptitiously obtained is not material to the cause or defense of one's client, and is material to the interest of the opposite party, not only good law, but good morals, require the instant production of such a paper, when it is shown to be in court. As to parties other than counsel, the trial judge, when the paper is in court, and therefore within his power, should, if its contents be competent evidence, require its production forthwith. We are unable to judge from the record in this case whether the witness, Mr. Erwin, was or was not of counsel. However this may be, we think it was the duty of the court to grant the request of the plaintiff for an investigation, which would have developed whether or not the paper was in court, and thus within the power of the judge, provided Mr. Erwin was not of counsel, or even if he were of counsel. The de tached coupon was the property of the plaintiff, which had been wrongfully taken from his possession by the defendant and continuously wrongfully withheld. The plaintiff paid his money for a contract of carriage evidenced by the return coupon. It was as much evidence of his right to ride as a deed is evidence of one's right to possession of the land therein described. For that reason, regardless of the effect of this evidence on the defendant's case, and whether the witness offered by the plaintiff was an attorney for the defendant or not, we think good law. and certainly good morals, would demand its instant delivery to the party to whom it belonged. The railway company, through its conductor, forcibly took this coupon from the plaintiff. It should not be allowed to keep it through any other of its agents. Trustees of Chester County v. Blount, 70 Ga. 782; Morgan v. Taylor, 55 Ga. 223 (3). Judgment reversed.

FEWS v. STATE. (Nos. 181, 182, 183.) (Court of Appeals of Georgia. Jan. 31, 1907.) 1. COURTS COURT OF APPEALS - - CONSTITUTIONAL QUESTION-CERTIFYING TO SUPREME COURT.

Although a claim or a defense may be asserted or resisted under a clause of the Constitution, unless a construction of such clause of the Constitution is involved, this court is not required to certify the question to the Supreme Court. Where the meaning of the language used in the constitutional provision is unambiguous and undisputed, or where the recognized construction which has been given such a provision

is unchallenged, no question of construction is involved. No such question is presented in the mere determination of whether a given state of facts establishes or disestablishes a claim or a defense asserted or resisted under an unquestioned construction of a constitutional provision. If the particular question of construction sought to be raised has been passed upon directly by the Supreme Court, such question will not be certified to the Supreme Court for repetition of its former decision.

2. SAME FORMER CONVICTION.

The finding of the trial court against the plea of former conviction was not unauthorized; it appearing that, while both indictments were for assault with intent to murder, the assaults were separate, were upon two different individuals, and were not in response to a joint attack of the persons assaulted, although one of the assaults immediately followed the other.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 382.]

3. HOMICIDE-ASSAULT WITH INTENT TO KILL -INSTRUCTIONS.

The charges complained of were not erroneous. The law against shooting at another was not involved in the case, nor was the law as to simple assaults; hence the court did not err in refusing to charge on these subjects. Each verdict was fully warranted by the evidence.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; Felton, Judge.

One Fews was convicted of assault with intent to kill on two indictments, and brings error. Affirmed on each bill of exceptions.

John R. Cooper, for plaintiff in error. William Brunson, Sol. Gen., for the State.

POWELL, J. The defendant was tried and convicted of the offense of assault with intent to murder in each of two cases. In case No. 183 the felonious assault is alleged to have been committed upon W. G. Solomon, Jr., and in No. 181 upon Charlie Adams, Jr. The defendant was first tried and convicted upon the charge relating to Solomon (case No. 183). Upon being arraigned upon the indictment relating to the assault upon Adams, he filed a plea of former jeopardy, alleging that the indictment in this case charged him with the same transaction for which he had been convicted in the case relating to the assault upon Solomon. By consent this plea was heard by the trial judge, who, upon hearing the evidence, found against the plea. Exception to this finding of the court was taken, and this forms the basis of case No. 182 in this court. The evidence against the accused in each case made out a malicious, wanton, and unprovoked case of assault with intent to murder; the state's testimony showing that Solomon, Adams, and certain other young men were quietly walking along, upon the "circle," or "midway," at the State Fair in Macon, when, without provocation or warning, the defendant, who was unknown to them, first fired two shots, one of which struck Solomon, and then turned his pistol upon Adams, who, seeing that he was about to be shot, ran towards defendant and grabbed hold of him; and, while Adams was struggling with the defendant, the defendant

58 S.E.-5

managed to get his pistol in such position that he fired it, striking Adams in the abdomen. The defendant's statement, which, however, was abundantly contradicted by other proof in the case, was that some one had assaulted him, knocked him down, and was on him, beating him and kicking him, when he shot his pistol in the air, thus inflicting the wounds upon Solomon and Adams. In each of the separate motions for new trials, in cases No. 181 and 183, the defendant complains of a charge of the court upon the effect of the evidence of good character introduced by the defendant, and as to the manner in which the contentions of the state are set forth. Since these charges appear to us to be so manifestly without error, and since a decision upon them would not be to announce any new principle of law, we deem it unnecessary to set them out further. In case No. 183 (the Solomon case) exception is also taken to the fact that the court refused to charge the jury upon the law of shooting at another and upon the law of assault.

1. In case No. 182, relating to the finding of the court upon the plea of former jeopardy, counsel for the defendant asks us to certify the question therein to the Supreme Court for instruction, on the grounds that it involves a construction of the clause of the Constitution of this state, which provides that "no person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial." Civ. Code 1895, § 5705. The constitutional amendment creating this court provides that "where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the Constitution of this state or of the United States, or as to the constitutionality of an act of the General Assembly of this state, and a deci. sion of the question is necessary to the determination of the case, the Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript of the record shall be transmitted to the Supreme Court, which, after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so certified, and the Court of Appeals shall be bound by the instruction so given." Acts 1906, p. 26. It will be seen from the above that, since the question presented in this case does not involve the constitutionality of an act of the General Assembly, it must appear that it raises a question as to the construction of a provision of the Constitution, before this court is required to certify it to the Supreme Court. A case that involves merely the applicability of a concededly unambiguous clause of the Constitution to a given state of facts raises no question of construction. Likewise, where a clause in the Constitution has been construed by the Supreme Court as having a certain meaning and intendment, and such fixed judicial construction is unchallenged,