dissenting. I will outline my reasons for dissenting in this case. Before the plaintiffs could recover against the garnishees (the railroad companies), it was incumbent upon them to show thát the garnishees were indebted to the defendant (Wright) at the time of the service of the summons of garnishment, or became indebted between that date and the time of filing their answer. Proof that, at the time of the service of the summons, an action was pending by Wright against the railroad companies is not proof that the companies were really indebted to lnm. This would be true even as to an action ex contractu; and it is irrefragably true as to an action for tort. Gamble v. Central R. Co., 80 Ga. 595, 7 S. E. 315, 12 Am. St. R. 276. If it had been shown that, as a result of either form of action, a final unappealed judgment had been rendered, this would have been sufficient evidence of an indebtedness from and after the rendition of the judgment. In the case at bar no final judgment was ever rendered. Did the railroad companies, then, become indebted between the service of the summons of garnishment and the date of the answer thereto ? If the parties merely liquidated, by agreement, an. admitted or established tort, the question should be answered'in the affirmative. Prom the record it is clear they did not do this. In the very proposition of settlement the companies denied liability, and merely offered, as a cash transaction, to buy peace. They offered to buy for cash something which was not, at least so far as the proof shows, a liability against them. This they *344could do without incurring an indebtedness; for in cash transactions no -indebtedness is contemplated by the parties, or by the law. Bergan v. Magnus, 98 Ga. 514, 25 S. E. 570; Matthewson v. Belmont Co., 76 Ga. 359; Emery v. Atlanta Exchange, 88 Ga. 325, 14 S. E. 556. It was a.cash transaction; but it is said that the companies did not pay in cash. They did the same thing; they paid by a negotiable instrument; and, as Lord Mansfield says of such instruments in the case of Miller v. Race, 1 Burr. 457, "Now they are not goods, not securities, nor documents for debts, nor are so esteemed; but are treated as money, e.s cash, in the ordinary course and transaction of business, by the general consent of mankind; which gives them the credit and currency of money to all intents and purposes. They are as much money as guineas themselves are, or anjr other current coin that is used in common payments as money or cash.” Indeed this court and the Supreme Court recognize that an indebtedness by negotiable instrument is not subject to garnishment, unless the garnishing creditor shows that the bill has become past due in the hands of the defendant, or that it is otherwise so impounded that possibility of its negotiation is excluded. Of course if the draft given to Wright was not a negotiable instrument, my whole argument falls. It was in the following form:
"Georgia Railroad.
"$1,750.00 Atlanta, Ga. May 14, 1906.
"At sight pay to the order of John T. Wright the sum of seventeen hundred and fifty dollars, in full settlement of any and all claims and damages incident to alleged personal injuries sustained at Atlanta, Ga., in the Union Passenger Depot on March 4, 1905.
"To W. S. Morris, Esq., Treasurer, Ga. B. B. Augusta, Ga.
“Jos. B. Gumming,
Gen. Counsel Ga. B. B.”
■ Endorsed, "John T. Wright.” Also, "Pay to the order of any bank or banker. Prior endorsements guaranteed. May 14, 1906. Fourth National Bank of Atlanta, Ga., Chas. J. Byan, Cashier.”
"A bill of exchange may be drawn upon the drawer himself, and is then in effect the promissory note or the accepted bill of the drawer at the holder’s election; and this is true in general of a bill or a draft drawn by a principal on his agent, or by an agent *345on his principal, or in'the principales business by-one agent on another.” 7 Cyc. 569. Treated purely as a promissory note, the instrument in question may be properly considered as past due, and therefore not negotiable from the moment of its issue, under the rule stated in the Civil Code, §3700. Under the same section, if treated (as the holder was entitled to do at his option) as a bill of exchange, it was net due until presented for payment, if presented in a reasonable time. The intention of the parties as derived from the form and nature of the instrument largely controls. It was manifestly not the purpose of the railroad corn-pa^ to give its note payable on demand, but to give a draft made in Atlanta, and not payable until it could be presented in Augusta; and to have it operate and pass as an ordinary bill of -exchange. In the case of Lynch v. Goldsmith, 64 Ga. 50, Judge Bleckley,— and when in Georgia decisions we speak of Bleckley, “We have reached the mountain from which the drift bowlders were detached,” — after deciding as to the applicability of the Civil Code, §3700, to the instrument then in question, adverts by way of obiter to the proposition that the intention as to the maturity of the instrument should be determined by the purposes it is issued to sub-serve. ^In the ease at bar the maker of the paper manifestly intended that it should not be payable on immediate demand; the payee likewise so took it, for he immediately negotiated it to the bank. Being a negotiable instrument, the garnishment did not catch the indebtedness thereby represented. I think, therefore, that the trial judge decided the case properly, and dissent from the judgment of this court to the contrary.