Daniels vs. The Intendant and Wardens of Athens. for the structure. But the county used the old timbers, and prescribed the terms on which the town should rebuild it. But the court certainly charged correctly, and if the testimony had been conflicting, we would not have interfered with the finding of the jury thereon. If the bridge belonged to the county, the town was not liable, if this embankment was part of the bridge in a legal view; and such was the essence of this charge: Shearman & Redfield, section 150; Dillon on Mun. Cor., sections 789, 579, note. 4. We think the fact that the town used the bridge and voluntarily worked upon and repaired it and the embankment, did not divest the county of the title and the right to control the bridge, and the consequent duty to repair it and the embankment contiguous and necessary to its use; nor do these facts by any construction that we are aware of, amount to a dedication from the county to the town by user; if, indeed, there can be such dedication from county.to town, and we see no error in the charge and finding on this point: 2 Dillon, 500, 501, 498. 5, 6. Now, if the embankment where the accident occurred had been part of the streets of Athens and not of the bridge, then Athens would have been legally bound to repair, and liable to the plaintiff; and the court so charged the jury. But they found the embankment, where the accident happened, within fifteen feet of the bridge, to be a part of the bridge and not of the street, and we cannot say that the evidence does not support the charge. 7. On the question of negligence the court charged correctly, as far as it went, to the effect that if the plaintiff's negligence in driving, or the condition of his horse, caused the accident, he could not recover: Shearman & Redfield, sections 417, 416, and notes 33, 34. If plaintiff desired the law in respect to contributory negligence to have been given in charge, he should have asked for it in writing. At all events, he should have called the attention of the court thereto. But we think the case turned on the other points. 8. This case, precisely as made here on the pleadings, and Wiece vs. Marbut et al. substantially on the evidence, has been here before: Daniels JOHN WIECE, plaintiff in error, vs. MILLY C. MARBUT et al., defendants in error. Upon an application for dower it appeared that the contestant claimed title to the land under a sheriff's deed, made by virtue of a sale under execution against the husband of the applicant, and after his death. There was no paper title shown to or from the deceased husband: Held, that the contestant was estopped from denying that the husband died seized and possessed of the land. Dower. Title. Estoppel. Before Judge KNIGHT. Fannin Superior Court. October Term, 1875. Reported in the decision. H. P. BELL; C. J. WELLBORN, for plaintiff in error. J. A. JERVIS; JOHN S. FAIN; MARSHALL L. SMITH; THOMAS F. GREER, for defendants. WARNER, Chief Justice. This was an application for dower in a lot of land in Fannin county, the applicant claiming the same as the widow of A. T. Churchhill, deceased. The right of the applicant to dower in the land was contested, and on the trial of that issue the jury, under the charge of the court, found a verdict against the widow's right to dower in the land. Whereupon she made a motion for a new trial, on the several grounds stated therein, which was granted by the court, and the contestant excepted. 55 613 59 875 61 321 70 794 75 418 Wiece vs. Marbut et al. The main question in the case was whether Churchhill, the husband of the applicant for dower, was seized and possessed of the land at the time of his death. It appears from the evidence in the record that Churchhill died in 1858 or in 1859, probably in 1858. It also appears from the evidence that Ashworth obtained a judgment against Churchhill in May, 1858, for $545 00, principal, besides interest thereon, upon which an execution issued on the 20th of May, 1858. This execution was levied on the land by the sheriff of Fannin county, on the 18th of June, 1858, as the property of the defendant, the sheriff reciting in his levy that he had given the defendant in possession notice thereof. The sale of the land under this levy appears to have been suspended by the interposition of a claim, as is shown by the entry of the sheriff on the execution. It further appears that on the 29th of May, 1867, the execution was again levied on the land by the sheriff, and sold on the 6th of July, 1867, and was purchased by Wiece, the contestant, the sheriff making him a deed thereto, in which it is recited that the land was seized and sold as the property of the defendant, Churchhill. There was evidence going to show that Churchhill never was in possession of the land, and there was parol evidence (admitted without objection) going to show that Churchhill had sold the land in his lifetime to Davis, and that Davis rented the land and received the rent therefor, but there was no evidence that Churchhill sold the land after the date of the judgment. There was no paper title to the land shown to, or from, Churchhill in his lifetime. The court charged the jury substantially as follows, that if Wiece, the contestant, claims title to the land under the sheriff's deed, the same having been sold as the property of Churchhill, then he is estopped to deny that Churchhill was seized and possessed of the land at the time of his death, and that his widow would be entitled to dower therein as against any lien created by her husband in his lifetime; that if the evidence shows that the land was sold at sheriff's sale after the death of Churchhill as his property, and the contestant, Burton vs. Wynne. Wiece, claims under that sale, he cannot deny that Churchhill owned the land at the time of his death. If the charge of the court was right, (and we think it was in view of the evidence in the record,) then the verdict was contrary to the charge of the court, and the new trial was properly granted on that ground. The defendant in the execution, Churchhill, was in the possession of the land at the time of the first levy thereon by the sheriff, on the 18th of June, 1858, according to his returns; and if Churchhill was the owner of the land at the time of the rendition of the judgment against him, and it was sold as his property after his death, and purchased by Wiece, the contestant, at sheriff's sale, as the property of Churchhill, he, claiming title to the land under that sale, is estopped from denying that it was Churchhill's property so as to defeat his widow's claim to dower therein. There was no error in granting the new trial. Let the judgment of the court below be affirmed. ABRAHAM BURTON, plaintiff in error, vs. SAMUEL W. WYNNE, defendant in error. 1. Process of garnishment will not be dismissed because plaintiff's attorney signed the bond as security, such attorney not being employed in the garnishment case, but having acted as such only in the original common law suit. 2. Section 3268 of our Code is directory only, and construing it in connection with section 4, paragraph 6, the fact that an attorney in the garnishment signed the bond as security would not make the proceeding void, it not being so expressly provided by the enactment in section 3268. 3. The debtor by promissory note may be garnished, and if served with the summons before he has paid the note, he will pay it at his peril, nor is he protected in paying to a third party who acquires title after the service of the summons, if the note be overdue. Such holder takes the overdue note subject to all the equities between the original parties, and among these equities is the right which a vigilant creditor acquires by his attaching the note by serving the summons of garnishment on the maker: 38 Georgia Reports, 17. 4. The issue in such a case is, to whom did the note belong when the summons of garnishment was served? and to illustrate that issue, a letter to his Burton vs. Wynne. agent to purchase the note by the holder, is admissible to show when he got title, as well as the bona fides of his purchase. The garnishee's whole defense rests upon the holder's title to whom he paid the note, and therefore his acts and letters are admissible against the garnishee. Garnishment. Bond. Attorney and client. Promissory Evidence. Before Judge POTTLE. Wilkes Superior Court. November Term, 1875. notes. Reported in the opinion. F. H. COLLEY; S. H. HARDEMAN, for plaintiff in error. W. M. & M. P. REESE, for defendant. JACKSON, Judge. Wynne brought suit against Dunn, and had process of garnishment issued against Burton. Burton answered that he owed nothing. Wynne traversed the answer and showed that Burton had owed Dunn on a promissory note, payable one day after date, and made some time before. Burton replied that he had paid the note to Mattox who got it from Dunn, and claimed that he was thereby protected. The court charged the jury that the whole question turned on whether Mattox purchased the note before or after Burton was served with the summons, or in other words, whether when served he owed Mattox or Dunn. The jury found against the garnishee and in favor of Wynne, that Mattox's title to the note was after the garnishment. Burton, the garnishee, brings the case here for review, and assigns as error, first, that the garnishment should have been dismissed because the bond of Wynne was signed by his attorneys as securities thereon, and secondly, because the charge of court, putting the case upon the issue of whether the title acquired by Mattox was older than the summons of garnishment, was illegal; and thirdly, because a letter of Mattox tending to show when he acquired title to the note, written to his agents in regard to it, was admitted in evidence. 1,2. We think that the garnishment should not have been |