1. Thе question on the merits-was, whether the fund garnished in the hands of Warren & Axson was the property оf Maddox at the time the garnishment was served, or whether it was the property of Jones by reason of the draft previously drawn by Maddox, payable to the order of Jones, upon Warren & Axson, and indorsed by Jones to Baldwin & Co. Notice that the draft would be drawn was communicated to the drawees by а letter from Maddox, which they received before they were served with the garnishment; but this lettеr, although it stated that a trade had been made with Jones, said nothing expressly of any assignment of the fund to him, but on the contrary urged payment of the draft because it would be unjust to keеp him, Maddox, out of the use of the money when he needed it. Except *486the mere say-sо of Maddox in the letter, there was no evidence whatever of any actual trade between him and Jones. . So far as appears, the drawing and indorsement of the draft might have been for the mere purpose of collection for the benefit of Maddоx. "When an action is brought upon negotiable paper in favor of a payee or indorsee, the presumption is that the plaintiff is a holder for value. But here there is nо- action on the draft itself or on the indorsement, but the draft is sought to be used, not as evidenсe of title to the paper, but as evidence of ownership, legal or equitable, of the fund in controversy. The draft was not drawn expressly on this fund or any other, but purported tо be for value received and directed the amount to be charged to account of the drawer. In form and effect it was a bill of exchange by Maddox upon Warren & Axson, and in itself did not operate as an assignment of the fund. Baer v. English, 84 Ga. 403, and cases cited; Haas v. Old National Bank, 91 Ga. 307. It was evidence tending to show an equitable assignment, and together with the letter, had there been evidence that some actual trade had been made between Maddox and Jones embracing a change of beneficial ownership in this fund, would have been sufficient to establish such an assignment. But as thе case stood before the jury, one of the material elements of an equitable assignment, namely a consideration passing from Jones to Maddox, was wanting. There was nоthing for the jury to look to as evidence of any consideration, except what Maddox affirmed in the draft and in the letter: in the draft, that it was drawn for value received; and in the lеtter, that he had made a trade with Jones. Had these same expressions been used in an express assignment of the fund, or if such an assignment had been connected with them in the draft оr the letter, they could and 'would have been taken as prima facie true, for in that case *487an intention to assign tire fund would havе appeared otherwise than by inference. When the intention to assign is to be inferrеd from other facts, all the facts requisite to form a basis for the inference must be prоved. None of them can ,be taken as true merely because they are recitеd in documents which might have been concocted by a debtor for the sole purpоse of withdrawing his money from a custody in which it was exposed to the reach of his creditоr by means ■ of garnishment. In order to infer an equitable assignment, such facts or circumstances must appear as would not only raise an equity between the assignor and assignee, but show that the parties contemplated an immediate change of ownership with respect to the particular fund in question, not a change of ownership when the fund should be сollected or realized, but at the time of the transaction relied upon to constitute the assignment. Had there been proof of an actual consideration paid or promised by Jones for the draft, a jury could well have made the inference, from that and the other facts, that an intention existed when the draft was drawn to make Jones the owner of the fund and to divest Maddox o.f the substantial ownership of the same though his legal title would still have been intact. It appears from the bill of exceptions that Maddox and Jones were both in court when the case was tried, but neither of them testified. Their silence wаs strongly corroborative of the theory that the draft was without consideration, that no- assignment of the fund waá actually intended, and that the collection attempted was for the benefit of Maddox.
2. The verdict of the jury was correct; the evidence was insufficient to warrant any other, and whether the court ought to have charged more or less than he did, there was no error in denying a new trial.
Judgment affirmed,.
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