JACKSON, Judge. of the cotton levied. to New York, and to their own use. Thornton vs. Wilson. This was a suit on a claim forthcoming bond; Byrd & Coker were the claimants. They gave bond and took possession Pending the claim they sent the cotton sold it and appropriated the proceeds The claim was dismissed and the fi. fa. ordered to proceed. No new advertisement of the cotton for sale was made. The court below awarded a non-suit because there was no subsequent or second advertisement, and this is the error complained of. As a general rule there must be a new advertisement of the property levied on, to give the claimant who made the forthcoming bond an opportunity to deliver it; but in a case like this where the claimant has sold and appropriated the property, and it is cotton or other perishable personalty, there can be no necessity or reason for the advertisement, because the claimant put it out of his own power to deliver, by selling it. "Ratione cessante, cessat et ipsa lex." We therefore hold that this bond was broken when the claimant sold the cotton he had agreed to deliver and put the proceeds in his pocket. This case differs but little in principle from Stinson et al., vs. Hall, 54 Georgia Reports, 676. The reasoning there, we think, controls this. And we reverse the judgment and direct a new trial. Judgment reversed. CHARLES THORNTON, plaintiff in error, vs. WYATT WILSON, defendant in error. 1. A distress warrant issued by a magistrate who was the son of the plaintiff, is not void. The act is purely ministerial. No lien is created until a levy. 1. A mortgage, not foreclosed, cannot claim money in court for distribution. Distress warrant. Officer. Mortgage. Before Judge RICE. Gwinnett Superior Court. September Term, 1875. 55 607 59 384 59 519 60 298 72 471 73 50 75 217 55 607 f110 638 f110 907 Thornton vs. Wilson. Reported in the decision. H. L. PATTERSON, by H. P. BELL, for plaintiff in error. J. F. LANGSTON, for defendant. WARNER, Chief Justice. This case came before the court below on a certiorari from a justice's court in relation to the distribution of money raised by the sale of the property of one Pressly. The money was claimed by Wilson under a distress warrant for rent, which was levied on the 18th of June, 1874. Thornton also claimed the money under an attachment which was levied on Pressly's property on the 29th of June, 1874, and also on a lien in the nature of a mortgage, executed by Pressly to him, to indemnify him as security, dated 5th of May, 1874, but which had not been foreclosed. The plaintiff in attachment insisted that Wilson's distress warrant was void, because it was proved to have been issued by his son W. W. Wilson, notary public. The justice ordered the money to be divided nearly equally between the respective claimants. Wilson sued out a certiorari to the superior court, and on the hearing thereof the court sustained the certiorari, and set the judgment of the justice aside and ordered the entire fund in the justice's court to be paid to the distress warrant of Wilson, whereupon Thornton excepted. 1. It appears from the evidence in the record that the money in the hands of the justice for distribution was raised from the sale of Pressly's property under the distress warrant levied thereon in favor of Wilson. If the distress warrant was void, then there was no money legally raised, in the hands of the justice, to be distributed. But we do not think the distress warrant was void; the issuing of the distress warrant was a ministerial act on the part of the justice, and created no lien on the property of the defendant therein, until it was levied. This case comes within the principle ruled in the case of Blount vs. Wells, 55 Georgia Reports, 282. Daniels vs. The Intendant and Wardens of Athens. 2. The mortgage was not entitled to claim the money because it had not been foreclosed. There was no error in ordering the money in the hands of the justice to be paid to the plaintiff in the distress warrant. Let the judgment of the court below be affirmed. WILLIAM W. DANIELS, plaintiff in error, vs. THE INTENDANT AND WARDENS OF THE TOWN OF ATHENS, defendants in error. 1. A contiguous embankment necessary to make access to a bridge so as to pass teams and wagons over it, is a part of the bridge, and title to the bridge covers such an embankment. 2. A bridge, though within the corporate limits of a municipality, may belong to the county and not to the municipality; and if it be recognized both by the county and municipality as the property of the former, the former and not the latter is bound to keep it in repair; and the duty to repair extends to all the bridge, including whatever contiguous thereto is necessary to get access to it to cross the stream thereon. 3. If such bridge was built and rebuilt by virtue of the authority of the county, which disposed of the old timbers at each rebuilding according to its own will, and authorized the municipal authorities to do all they did in regard to rebuilding it, assuming and exercising the right to declare it a toll bridge in the contingency that the municipality failed to pay the bonds issued by it for rebuilding the bridge, the title and duty to repair is in the county, no matter in what proportion the county and town contributed to rebuild it. 4. The fact that the town authorities from time to time voluntarily repaired the bridge and worked and kept in order the embankment leading to it, does not change the title to the property or the legal duty devolving upon its owner, nor does such voluntary repair and user make such a case of dedication by the county to the town as to change the title and legal duty to repair. 5. If the embankment was not a necessary part of the bridge, but was a part of the streets of the municipality, the town, and not the county, would be bound to keep it in repair; and whether it be the one or the other is a question for the jury under the charge of the court, and such question being fairly submitted by the court and decided by the jury, this court will not interfere. 6. It follows, that whether a party crossing the bridge in a wagon, and precipitated from the embankment ly the backing of his horse from the en 55 609 59 546 55 609 101 711 55 609 d108 428 55 609 d110 826 Daniels vs. The Intendant and Wardens of Athens. trance of the bridge fifteen feet on the embankment, and thence over the embankment fifteen to twenty feet high, and thereby severely injured, can recover from the town authorities, turns on the title to, and consequent duty to repair, the bridge and its appurtenances, and whether the embankment be an appurtenance thereto; and these questions having been fairly submitted to the jury, and a new trial having been refused thereon, the evidence, to say the most for the plaintiff in error, being conflicting, this court will not control the discretion of the court below in refusing to grant a new trial. 7. The law in regard to negligence and its effect, both as respects the plaintiff and the defendant, having been substantially given by the court, and no request having been made in writing or otherwise, to amend the charge by calling the attention of the court to the doctrine of contributory negligence, this court will not direct a new trial, although the court below omitted to charge upon that subject, especially as the verdict of the jury probably turned upon the other points made by the pleadings. 8. This case having been before this court before on the same pleadings, and upon the same evidence substantially, and the principles of law applicable to it having been then decided, and as then decided fairly submtted in the charge to the jury, it is res adjudicata in essence if not in form, and on that account it would require a very strong case to induce this court to reopen the controversy. Roads and bridges. Municipal corporations. County matters. Dedication. New trial. Charge of Court. Judgments. Before Judge RICE. Clark Superior Court. August Term, 1875. Reported in the opinion. S. P. THURMOND; EMORY SPEER; JOHN C. REED, for plaintiff in error. C. D. HILL; COBB, ERWIN & COBB, for defendant. JACKSON, Judge. The plaintiff, in crossing the lower bridge over the Oconee at Athens, in a covered wagon, was seriously injured by the backing of his horse from the bridge off a contiguous embankment, precipitating the wagon and horse some fifteen to twenty feet below. There was no railing on the embankment to prevent such a casualty. The bridge and embank Daniels vs. The Intendent and Wardens of Athens. ment were within the corporate limits of Athens with streets on both sides of the bridge. He brought suit against the town of Athens to recover damages for loss of property and personal injuries received in the fall. The town pleaded that the bridge and embankment were the property of the county, and the county was bound to repair and was liable for the injuries, and also that plaintiff's negligence in driving a bad horse, prone to backing when in harness, caused the casualty. The jury found for the defendant, and a motion was made for a new trial on errors in the charge, and because the verdict was contrary to the law and the evidence. 1. The court charged, in substance, that if the embankment was contiguous to the bridge, and necessary to enable teams and wagons to cross the stream over it, it was part of the bridge, in law, and this is complained of. We think this principle is good law. The bridge would be useless without access to it, and the good sense of the rule is supported by authority. Indeed, in England the distance wherein such access would be considered part of the bridge has been held to extend three hundred feet. In this country this rule is perhaps modified, but it is always and everywhere held, so far as we have examined, that what is reasonably necessary by way of elevating the ground to roll the wagons up to the bridge, is part of the structure, and, as the court below charged, carries the title to the main bridge over the abutment or embankment. See Shearman and Redfield on Neg., sections 252, 253, and cases there cited. 2, 3. The court further charged to the effect that if this bridge belonged to the county, though in the corporate limits of Athens, the county and not the town was liable for the injury, being bound to repair it. The evidence preponderates that the bridge belonged to the county. Indeed, it seems that everything the town ever did in regard to this bridge was in subordination to the county. True, they both contributed to build and rebuild it from time to time, and the last time it was rebuilt, in 1869, the county seems to have expended only $500 00 towards the work, and the town issued bonds to pay |