
    HOWELL v. MATHIESON et al.
    
    A general demurrer was properly sustained against a petition for the appointment of a receiver to take charge of a quantity of whisky which the plaintiff insisted was subject to be sold, so that the proceeds could be applied to an execution in his favor against the alleged owner of the whisky; for no receiver appointed by the court in which the relief was sought could have handled, transported, or sold the whisky, so as to convert it into money for application to the execution.
    May 18, 1917.
    Equitable petition. Before Judge Hill. Fulton superior court. July 19, 1916.
    Morgan Howell brought his petition against George Mathieson ct al., alleging, that on May 16, 1916, petitioner obtained a judgment against Henry Boyd for. a stated sum, upon which execution had issued, upon which nulla bona had been duly entered; that Mathieson, chief of police of Pulton County, had in his possession a quantity of whisky of the value of $900, which belonged to Henry Boyd; that plaintiff had asked Mathieson and one of his deputies to levy the execution on the whisky, which they declined to do, on the ground that under the prohibitory law of the State they could not sell and dispose of the whisky; that the property is in the hands of the chief of police without due process of law; that he is simply holding it as evidence against Henry Boyd in a criminal case in which Boyd is charged with violating the prohibition law of the State; that the whisky could be taken charge of by a receiver appointed by a court of equity, shipped beyond the limits of the State, and there converted into cash, without violating the prohibition law of the State of Georgia. The prayer is, that a receiver be appointed, and that the chief of police be required to turn over to such receiver the whisky to be held until further order of the court. A general demurrer to the petition was sustained, and the plaintiff excepted
    
      T. J. Ripley, for plaintiff. Moore & Pomeroy, for defendants.
   Beck, J.

(After stating the facts.) There' was no error in sustaining the general demurrer. The' equitable relief sought could -not. be granted under the facts alleged. No receiver appointed by the court could have handled,'transported, or sold the whisky alleged to be the property of Boyd, the defendant in fi. fa. The ruling in the ease of Fears v. State, 102 Ga. 274 (29 S. E. 463), is not applicable under the facts of this case, in view of the provisions of the prohibition law of the State as it has existed since the passage, at the extraordinary session of the legislature in 1915, of the acts approved November 17 and 18, 1915, respectively, relative to intoxicating liquors, etc. Full discussion of the principle underlying this ruling, in the case of Delaney v. Plunkett, 146 Ga. 547 (91 S. E. 562), renders an elaboration of the ruling here unnecessary.

Judgment affirmed.

All the Justices concur, except Fish, O. J., and Atkinson, J., dissenting.

Chief Justice Fish was prevented by illness from taking part' in the judgments rendered on February 24 and 28, and on March 1 and 13, 1917.  