
    The Talladega Mercantile Company v. The Robinson, Boylston & McKeldin Company et al.
    
    July 29, 1895.
    Attachment and garnishment. Before Judge Turn-bull. City court of Floyd county. September term, 1894.
    Suit was brought against Pitts & Co., and garnishment served on the Rome Iron Co. The Robinson, Boylston & McKeldin Co. were made parties, claiming under a draft in their favor, made by Pitts & Co. on the garnishee. A part of the fund was awarded to the-claimants. It appears that the draft was dated November 4, 1893, payable at thirty days. On November 13, claimants forwarded the draft to the garnishee for acceptance. It was returned with the statement: “’We do not owe Pitts & Co. There may be something due them the ensuing month on cha-rcoal, though we are not sure of this. If there is, they will have to take, according to contract, our three months note in payment.” Claimants then wrote to the garnishee: “ Yours of 15th, returning P. T. Pitts & Co.’s draft, to hand; and we note what you say regarding contract with them. We have written them for B/L 6 cars coal recently shipped you by them. We will be glad to accept your note in accordance with your contract with them, for amount they are due us, if satisfactory to you.” To which the garnishee replied: “Tours 16th inst. received. We will very gladly hold anything for you on P. T. Pitts & Company account, and make settlement with you at end of month in place of them.” There was no further evidence of acceptance of the draft.
   Lumpkin, J.

1. An ordinary draft drawn by a creditor upon his debtor, and not made payable out of any particular fund, does not, before acceptance, operate as an assignment to the drawee, legal or equitable, of money due by account from the drawee to the drawer of the draft. Baer v. English & Co., 84 Ga. 403; Haas v. Old National Bank, 91 Ga. 307; Jones v. Glover, 93 Ga. 484; Georgia Seed, Co. et al. v. Talmadge & Co., 96 Ga. 254.

2. The evidence introduced in this case to show acceptance was entirely insufficient for that purpose, and the court therefore erred in adjudging that any part of the fund in controversy should be paid to the payees of the draft.

3. In other respects, no error appears in the judgment rendered by the trial judge, who tried the case without the intervention of a jury. Judgment reversed in part, and in part affirmed.

Hoskinson & Harris and Halsted Smith, for plaintiff.

C. A. Thornwell, J. W. Ewing and Foucieé & Fouché, contra.  