majority">DARGAN, C. J.

— To entitle a plaintiff to a judgment against a garnishee upon his answer, it must appear that there is a debt due from the garnishee to the defendant in attach*168ment; and should it appear from tbe answer that the debt bad been assigned before the process of garnishment was executed, and the assignee is not called in to contest his right thereto, as he may be under our statutes, then no judgment can be rendered against the garnishee. Foster, Nastraud et al. v. Walker, 2 Ala. 117; Fortune v. The State Bank, 4 ib. 385; 6 ib. 836.

The sole question in this case, therefore, is, whether we can consider the drawing of the bill by Furniss on Connolley, in favor of Wingate & Breman, as an assignment of the debt that was due from Conolley to Furniss. The theory of a bill of exchange is, that the drawer has funds in the hands of the drawee, and by drawing the bill, he sells or assigns such funds to the payee, or such part thereof as amounts to the sum specified in the bill. Story on Bills, § 13; Chitty on Bills, 360, note; 6 Wheat. 277. It is true, that to give the payee a legal right of action against the drawee, he must accept or agree to pay the bill; and if the bill or draft be for only a part of the funds in the hands of the drawee, then the assignment cannot be considered as complete until there has been an acceptance or an agreement to pay. Chitty on Bills, supra, and cases there cited. But when the bill is for the entire amount in the hands of the drawee, it has been held, that the drawing of the bill is an assignment of the funds, and, after presentment, the drawee cannot legally part with such funds against the consent of the payee. Peyton v. Hallett, 1 Caines, 379; Cutts v. Perkins, 12 Mass. 206. If, however, this last proposition be incorrect, and if it should require the assent of the drawee to perfect the assignment, even when the bill is for the whole amount in the hands of the drawee; still, in the case before us, I should hold the assignment complete, at least in equity, for the drawee does not deny the right of the drawer to draw the bill, and the only reason why he has not paid it, is, that the debt has been attached in his hands since the draft was drawn. Nor does it appear that the payee has protested the bill, or given notice of non-payment to the drawer. Under these circumstances, and as the garnishee submits, by his answer, to pay the amount to him who in law is entitled to it, we think it clear that the payees of the bill must be preferred to the attaching creditor. They have *169looted to no other source for payment, and, therefore, have not abandoned their equitable right to the fund, which must be considered as complete under the circumstances disclosed by the answer of the garnishee.

We place our judgment, in this case, upon the particular facts, but I should be willing to hold, if necessary, that when the bill is for the entire amount in the hands of the drawee, and the payee does not have the bill protested, but looks to these funds alone for payment, a court of equity would consider the drawing of the bill as an assignment of the fund, and would compel its payment. It is not, however, necessary to decide this at this time, as the particular facts of this case make out a clear and unquestionable assignment of the fund.

Let the judgment be affirmed.

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